Med Mal News

On Sept. 28, the Centers for Medicare and Medicaid Services (CMS), an agency within the U.S. Department of Health and Human Services (HHS), issued a new rule that prevents nursing home facilities receiving federal funding from contractually depriving patients and their representatives of the right to sue in federal and states courts. This and several more changes were made in the 2016 CMS Final Nursing Home Rules, the first comprehensive update to these rules since 1991.

In recent years, many nursing home and long-term health care operators have included in their intake paperwork an agreement requiring that any complaints — including those for medical malpractice and wrongful death — be heard by an arbitrator, rather than a judge or jury. This has left many consumers not only constrained in their forum choices, but also unable to evaluate the quality of care they can expect at a particular nursing home because arbitration proceedings are not a matter of public record. According to a Sept. 28 blog posting authored by Andy Slavitt, Acting Administrator, and Kate Goodrich, M.D., M.H.S., Director, Center for Clinical Standards & Quality, CMS: “Since proposing to update these rules in July 2015, as part of the White House Conference on Aging, we have received and reviewed nearly 10,000 comments from the public. Many of the comments highlighted an important topic: concern about the use of required binding arbitration agreements that many prospective residents must sign before they are admitted to a long-term care facility.”