| Bar Bulletin |
May,
2003 |
|
Monthly Focus Articles |
|
Arbitration Agreements In Nursing Home Contracts
By Susan Dishler Shubin
Following a national
trend, Maryland’s nursing facilities have recently begun requesting that
residents and their family members sign an arbitration agreement that
would waive their right to a trial before a judge or jury. They usually
send the arbitration agreement with a cover letter including such language
as “…the runaway cost of litigation has made it more and more difficult to
provide the level of care that your loved one deserves,” tying the request
to sign to the facility’s ability to provide quality care. The facilities
are asking this of both new and current residents.
On January 9, 2003,
Centers for Medicare and Medicaid Services (CMS) provided a memorandum to
State Survey Agency Directors (In Maryland, the Office of Health Care
Quality, or OHCQ). CMS’s position regarding binding arbitration is that it
is between nursing homes and prospective or current residents and that
their primary focus should be on the quality of care actually received by
the resident. Under Medicare, they conclude that whether to have a binding
arbitration agreement or not is an issue between the resident and the
nursing home. Under Medicaid, they defer to state law. However, there are
mandated as well as forbidden actions for facilities in this area. A
nursing home may not discharge a resident or retaliate due to his/her
failure to sign or comply with a binding arbitration agreement. Clearly, a
current resident is not obligated to sign a new admission agreement that
contains binding arbitration. Despite the existence of a binding
arbitration agreement, the State survey agency (OHCQ) or CMS may issue
citations for violations of requirements, including Quality of Care.
Advocates for nursing
home residents strongly counsel residents and families not to sign these
agreements. One cannot predict how the course of nursing home care will
progress. There could be unfortunate results and one would not want to be
bound to something signed when circumstances were different. Further,
should a lawsuit be necessary, arbitration or mediation could always be
suggested at that time.
If a family member or
resident is considering signing this agreement, an attorney should make
sure that it is clear who pays the cost of the arbitrators. Further, it
should be made clear to clients that signing does not preclude other
complaints open to them, such as a complaint to the Office of Health Care
Quality.
