CMS Bans Forced Arbitration in Nursing Homes

On September 28, Centers for Medicare and Medicaid Services announced a final rule that requires long-term care facilities to end the practice of forced arbitration, wherein residents would sign away their legal rights in the event of a future dispute as a necessary condition of their admittance. The new rule marks a major victory for nursing home residents and their families, who can finally hold care facilities accountable should mistreatment or malpractice occur.

Waxman Strategies is proud to have played a role in realizing this rule change. Last fall, the American Association for Justice contracted with us to help put a stop to this unjust practice wherein victims of abuse are silenced and negligent long-term care facilities easily evade accountability. As Henry explains in his op-ed on the topic, under the former system, “If your mother suffers abuse or neglect and you choose to do something about it, you will enter a kangaroo court in which the outcome is rigged against you. Not only does the nursing home choose the arbitrator (who then has a financial incentive to side with the home to obtain repeat business), but you have no right to appeal the decision of the arbitrator, who may have little or no legal training.”

Beyond the op-ed, we engaged members of the administration and CMS to ensure the issue was considered and included in the next final rule. September’s announcement is the culmination of hard work on the part of our team and the American Association of Justice to ensure that nursing home residents can finally have their day in court. Under the new rule, arbitration agreements are not allowed until after a dispute arises. Accordingly, signing an arbitration clause cannot be a pre-condition of your admittance to a long-term care facility.