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Arbitration Clauses for Nursing Home Admission Update

As an update to my two previously written blog posts, the Trump administration has worked towards lifting the Obama administration's ban on nursing home arbitration clause as reported in Modern Healthcare. In the closing days of the Obama administration, the Center for Medicaid and Medicare Services put forth a rule banning arbitration clauses in nursing home admission agreements.  This rule was subsequently put on hold by a Federal Court.  Now, with the new administration is, more or less, changing the Obama administrations rule.  This means that we are back to the old status quo, where nursing homes can have arbitration clauses in admission paperwork.

Why is this important?

When your elder goes to a nursing home, whether it is for the long-term or for short-term rehabilitation, it is often a difficult time that coincides with a downturn in health such as a stroke, fall or another injury. At admission, the facility will likely try to have the family waive their rights to a jury trial in the event of nursing home abuse or malpractice.  The ability to sue in civil court is a great right - an equalizer of sorts, of the small person often up against a multi-million dollar corporation, which should not be waived in most situations.

What should I do when my elder goes to a nursing home or assisted living facility?

We advise that the arbitration and waiver of jury trial clauses be stricken out.  Most of the time the facility staff will not object to the elder and their family doing this. I have reviewed the paperwork for many nursing home admission agreements and have had the striking of these clauses objected to only a handful of times. 

Conclusion

If you or your loved one goes to a nursing home, it can often be a difficult time. You may need legal help to protect assets, answer questions and review admission paperwork such as this. You can learn more about helping your elder as follows:

D. Rep DeLoach III
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Estate Planning and Board Certified Elder Law Attorney
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