In recent years, nursing homes have increasingly asked — or forced — patients and their families to sign arbitration agreements prior to admission. By signing these agreements, patients or family members give up their right to sue if they believe the nursing home was responsible for injuries or the patient’s death.

The Meyer Law Firm recently won in Colorado Appellate court voiding an arbitration agreement that was not in bold print—giving patients more rights–and the case has now been appealed to the Colorado Supreme Court.

In a separate but related action, the federal Centers for Medicare and Medicaid Services (CMS) is now forbidding nursing homes from entering into binding arbitration agreements with a resident or their representative before a dispute arises.  The agency has issued a final rule prohibiting so-called pre-dispute arbitration agreements in facilities that accept Medicare and Medicaid patients, affecting 1.5 million nursing home residents. After a dispute arises, the resident and the long-term care facility could still voluntarily enter into a binding arbitration agreement if both parties agree.

For years, patient advocates have contended that those seeking admission to a nursing home are in no position to make a determination about giving up their right to sue. Families are focused on the quality of care, and forcing them to choose between care quality and forgoing their legal rights is unjust, the advocates said.  Courts have sometimes struck down arbitration agreements as unfair, but others have upheld them.

“Clauses embedded in the fine print of nursing home admissions contracts have pushed disputes about safety and the quality of care out of public view,” the New York Times wrote in its coverage. “With its decision, [CMS] has restored a fundamental right of millions of elderly Americans across the country: their day in court.”

Now a group representing non-profit and for-profit nursing facility and assisted living care providers, filed a lawsuit against the Department of Health and Human Services in federal court in Mississippi. The lawsuit argues that Congress has not given CMS the authority to regulate the use of arbitration, and the suit seeks a preliminary injunction preventing enforcement of the new rule pending the court’s final judgment in the case.

In my opinion, arbitration agreements in nursing home settings are abusive and unfair to the patients—they are neither fair or speedy. They are not really negotiated at all and are used as a sword by the nursing home industry to intimidate aggrieved elders and patients and force settlements. They should be prohibited as the Federal government has ruled.