The United States Centers for Medicare and Medicaid Services, the federal agency that administers the Medicare and Medicaid programs, issued new regulations governing nursing homes and assisted living residences that accept Medicare or Medicaid funding for residents. Since most every nursing home in New Jersey accepts both Medicare and Medicaid and since most assisted living residences in New Jersey accept Medicaid, these new rules will affect most of the facilities in this state.
One of the biggest changes these new rules bring is a prohibition against these facilities from placing binding arbitration clauses into their admissions agreements. When a resident enters a nursing facility, he is often presented with an admissions agreement (a contract) between the facility and the prospective resident. The admissions agreement is often thirty or more pages in length. The agreements are weighted heavily in favor of the facility and against the interests of the resident.
If that were not enough, the facilities also like to place a binding arbitration clause into the agreements. What these clauses do, in short, is take away a resident’s “day in court.” Unlike court, with arbitration, there is no jury, there is no judge, there is no public hearing.
Facilities like arbitration because an arbitration hearing prevents the public from hearing what the nursing home is accused of doing. Without a jury, the facilities believe that their chances of winning are increased. For this reason, facilities like to place these clauses into their admissions agreement.
When a family sues the facility for a problem that the admissions agreement covers, the facility will raise the arbitration clause and get the matter kicked out of court. The family must then submit to arbitration instead of having its day in court.
Over time the Centers for Medicare and Medicaid Services (CMS) heard the complaints of families and elder law attorneys. CMS has now passed laws that prevent facilities that accept Medicare or Medicaid from placing arbitration clauses into their admissions agreement. The rule does not prevent a family and a facility from agreeing to submit the case to arbitration once a problem arises, but the rules prevent the facility from placing such a clause into their admissions agreement before a problem occurs.
I have concentrated my practice in elder law for seventeen years now, and I can tell you that the myths clients hear from nursing homes are always the same. I constantly hear of nursing homes threatening family members of residents that the facility is going to discharge the resident and the family will have to take care of the resident in their home. Facilities tell residents that there are no Medicaid beds available when every bed in the facility is a Medicaid certified bed. Facilities tell families that the waiting list for a Medicaid bed is six months or one year or two years, when the resident is already in a Medicaid bed.
The truth of the matter is, residents have a great many rights. Many of these rights have been in place since the mid-1980s. Many of the fallacies that facilities spew are in direct contradiction of these rights that have existed now for thirty years.
The latest rule change that will prohibit nursing homes and most assisted living residences from putting arbitration clauses into their admissions agreements will ensure that residents can enforce their rights in court. This new rule further strengthens the array of rights that residents of long-term care facilities possess. If you are threatened by a nursing home or assisted living residence, I would advise you to seek legal counsel. Your initial reaction may be to believe what the facility is telling you, but that may be exactly what the facility is hoping you do.