Back in March, we wrote about arbitration agreements as used in nursing home admission agreements. Such agreements have been criticized for preventing nursing home residents from seeking just compensation for sub-standard care, and for allowing long-term care institutions to keep their misdeeds from the public light. As we pointed out last time, though, these agreements are typically upheld on the principles of contract law. As long as the agreement is part of a valid and binding contract, they are usually upheld.

Last month, however, a significant development on this issue occurred when the Centers for Medicare & Medicaid Services issued a final rule prohibiting nursing home facilities from requiring residents to sign binding pre-dispute arbitration agreements. The rule, which is to be implemented in phases through the end of 2019, applies to all facilities accepting funds through these two programs, which most do. 

In addition to the prohibition on pre-dispute arbitration, there is several other requirements. First, that nursing facilities must provide “nourishing” and “palatable” dietary options to meet nutritional needs and preferences and residents; second, that nursing facilities must implement infection prevention and control programs; and third, that nursing facilities must develop comprehensive care plans within 48 hours of admission. Also included in the rule are updated rules regarding elder abuse, ensuing properly trained staff and planning for discharge.

Certainly, this is a positive development for nursing home residents and their families, and one which will allow those who have been harmed by poor long-term care to seek fair compensation in court, if necessary. In any such case, it is important to work with an experienced attorney to receive guidance and zealous advocacy.