Making The Complex

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Unsurprisingly, nursing homes opposed to this rule

When it comes to the subject of arbitration in nursing home disputes, there is nothing unequivocal about the figurative line that is drawn in the sand.

Straddling one side of that line is virtually the entire nursing home industry in the United States. Its spokespersons loudly and persistently claim that arbitration to resolve disputes between elderly patients and nursing homes regarding personal injuries, wrongful death and other matters — specifically, mandatory arbitration that supplants any right of court access — is a positive thing that keeps industry costs down and ultimately leads to better patient care.

On the other side of that division is a broad coalition of groups spanning government regulators, patient advocates, malpractice and family law attorneys and family members of patients across the country. They dismiss the pro-arbitration argument cited above as specious and self-serving.

The real push for arbitration coming from industry insiders owes to this, they say, as noted in a recent New York Times article on the subject: the desire to “keep patterns of wrongdoing hidden from prospective patients and their families.”

Coupled with that is this tandem concern: A day in court can easily result in the wide dissemination of adverse information regarding maltreatment and a jury verdict that materially drains the coffers of a nursing facility where negligent or bad-faith conduct occurred.

As noted by the Times, previous legislative efforts to outlaw mandatory arbitration as a prerequisite to nursing home admittance have failed on Capitol Hill.

A new push bypassing that process might just succeed. The U.S. Centers for Medicare and Medicaid Services announced recently a new rule that, if it passes judicial scrutiny, will require all nursing homes across the country that receive federal funding to drop arbitration as a condition to facility admittance.

The rule is scheduled to take effect from November.


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