Nursing home admissions contracts are increasingly including clauses that would force any legal dispute involving nursing home care to go to arbitration instead of through the court system.
There are a number of reasons why increased arbitration is a dangerous trend. One disturbing aspect of forced arbitration clauses is that the company writing the contract will often specify their own, hand-picked arbitrators. Additionally, arbitration hearings tend to have fewer procedural protections to ensure fairness. Specifically, discovery, which allows for the collection of evidence, can be much more difficult in an arbitration hearing. Arbitration hearings also tend to result in awards that fail to cover the full amount of damages suffered by plaintiffs. Even with these flaws, arbitration rulings are extremely difficult to overturn or review in court.
The Centers for Medicare & Medicaid Services (CMS), which regulates facilities that receive federal funds, has proposed rules that would place some restrictions on how arbitration agreements may be signed. However these proposed regulations have detractors from both consumer and resident rights groups, who say these regulations don’t go far enough, and the nursing home industry, which finds these rules too burdensome. The final regulations have yet to be released.