Like many rules, it started with good intentions, but the rule that took effect under the Obama administration that forbids forced arbitration in nursing homes and assisted living facilities (ALF) comes with confusion. The Department of Health and Human Services initiated a ban against these facilities from forcing patients and their families to give up their right to sue, ensuring that they do not have to sign a clause before being permitted to stay in the nursing home or ALF.
The facts show that nursing home abuse and neglect is predominant across the country. When a family member or patient is forced to give up their right to sue, they are giving up part of their right to protection. That changed with the new rule against forced arbitration.
Here are 3 things you should keep in mind about this rule if you or a loved one is in one of these facilities.
3 Key Points About the New Rule Against Forced Arbitration in Nursing Homes
1. The rule has still not been fully implemented.
Nursing homes and healthcare industries are fighting this rule through lawsuits. Because of this, there is an injunction in place that has prevented the ban from becoming implemented.
During this time, a negligent nursing home may still be protected under their forced arbitration clause. If your loved one was a victim of neglect or abuse in a nursing home and you signed one of these clauses, you should contact an attorney who has experience with nursing home neglect cases.
2. Just because you can’t sue doesn’t mean you aren’t allowed rights.
CMS Medicare is in the process of revising the rule against forced arbitration. Instead of forbidding it, CMS has declared that the clause must be written in easily understandable language so that patients understand what they are signing.
However, even if you have to sign it to get your loved one into a nursing home or ALF, it doesn’t mean you can’t sue at all. It means that the facility gets to avoid a lengthy court battle by going directly into arbitration instead.
3. Not all mandatory arbitration clauses are legal.
Although the rules implemented during the Obama administration have not taken effect, and the Trump administration supports the policy of forced arbitration as a way to help long-term care facilities save on costs, that doesn’t mean the clause you signed was legal. Some of these clauses have been disputed and found to not hold up in a court of law. Talking to your nursing home abuse lawyer can help you determine if the clause you signed is legal.
Even with Forced Arbitration, You Still Have Rights
Nursing home abuse and neglect is a serious situation. If you have reason to suspect that your family member or loved one is the victim of this crime, you should contact a skilled nursing home abuse lawyer immediately. They will let you know your rights and the rights of your victim and walk you through your next steps.