Widespread changes of elder law regulations are under review

Getting a loved one in failing health checked into a nursing home in Texas is often a harrowing experience that tends to wear on one’s emotions. There are a slew of papers to be signed, some of which contain releases of liability and other promises that may have significant elder law consequences. One popular provision favored by the nursing homes and put into their final care agreements is that any disputes between them will be heard in an arbitration hearing and not in a court of law.

The clause in which the patient agrees to submit any future disputes to arbitration for resolution has the impact of preventing a claim or legal action in a court of law to litigate the dispute. An arbitrator instead will be appointed to hear the case and render a decision. The arbitrator is theoretically neutral, but statistics show that they tend favor the company that is mandating the arbitration. Additionally, there is usually no appeal allowed from an arbitrator’s position.

When first admitting a loved one into the institution it is easy to sign many papers without knowing fully what they mean. It is human nature for one to sign virtually anything put in front of him or her when in a crisis situation like this one. Signing something that waives one’s rights to a court determination is no light issue, but in the stress of a tense situation, questions are unlikely. Knowing that the above procedure has a potential for abuse, the Centers for Medicare and Medicaid recently announced some changes on the procedures for obtaining forced arbitration.

Residents or their representatives would have to sign something saying that they understand what is the meaning of the forced arbitration clause. The institution would not be allowed to make the admission contingent on signing a forced arbitration clause. These changes are part of a large package of regulatory changes that touches on some of the most important elder law issues and makes proposed changes. People in Texas and nationwide have until Oct. 14 to submit comments on the proposed regulatory changes.

Source: dispatch.com, “Arbitration over long-term care can surprise”, Encarnacion Pyle, Sept. 15, 2015