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Capitol Correspondence - 02.15.19

CMS Seeks to Roll Back Nursing Home Residents’ Ability to Litigate

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ANCOR is sharing this article from Modern Healthcare because people with intellectual / developmental disabilities who are waiting lists for Medicaid-funded community supports may reside in nursing homes (regardless of their age), so the rule roll back described in the article would affect their ability to litigate as well. People with disabilities have a legal entitlement to access to nursing homes, and must be eligible for state Medicaid waivers to opt out of nursing homes and instead receive supports to live in the community with their family and peers. Medicaid waivers are often capped at a certain amount of people, and with increased demand for community supports, this causes waiting lists.

As written by Modern Healthcare:

The Trump administration has proposed rescinding an Obama-era regulation that prohibits nursing homes from forcing patients and their families to sign binding arbitration agreements as a condition of admission.

The CMS’ proposed rule released Monday will prevent the Obama administration’s nursing home arbitration ban from ever going into effect, as it had been placed on hold due to litigation. The CMS proposal comes just weeks after the CMS hinted to long-term care advocates that it was in favor of arbitration over litigation for nursing home disputes with residents and their families.

[…]

The Obama administration final rule, released in November, was the first major update to long-term care provider requirements since 1991. The 700-page proposal contained several other revisions to long-term care provider regulations, many of which the Trump administration will preserve.

The new proposed rule still imposes new requirements on nursing home arbitration agreements. Nursing homes must explain the contracts to the resident and his or her representative, and the agreement cannot contain any language that prohibits or discourages the resident or anyone else from communicating with federal, state or local officials.

The CMS also introduced new requirements in the newly proposed rule, suggesting that binding arbitration agreements must contain plain language rather than legal jargon in order to be a condition of admission. Facilities would also have to post notices describing their arbitration policies in plain language for residents and visitors to see.

[…]

Arbitration agreements prevent families who believe their loved ones received bad care at nursing homes from suing. Some families say they often feel pressured to sign the contracts and don’t understand what they’re agreeing to. They only find out later that awards through arbitration in nursing home cases are usually lower than those reached in court.”