2. The resident or his representative acknowledges that he or she understands the agreement; Although under the new rule, care homes will not be able to compel residents to sign arbitration agreements as a condition of admission, foster home residents argue that, in many cases, the effect will be the same as forcing residents to sign. Institutions should also look at what the state`s higher courts have said about arbitration procedures, and examine how admissions processes are conducted in light of the new requirements, Bilmoria said. The rule does not make arbitration decisions and proceedings public, but if the institution and a resident settle a dispute by arbitration, the rule requires that a copy of the agreement signed for a binding arbitration procedure, plus the arbitrator`s final decision, be retained by the agency for five years after the dispute has been settled and be available at the request of CMS or its representative. Uncertainty about the application of arbitration agreements in care homes has definitely been removed, at least for now. On July 16, 2019, CMS released its long-awaited final rule, which updates the requirements that nursing homes must meet in order to use binding arbitration agreements. CMS released the official version of its final rule to the Federal Register on July 18, 2019. See 84 Fed. Reg.
In addition, the final rule states that arbitration agreements must be developed and clarified “in one way or another” that residents or their representatives understand. But there is no indication from the government as to what this entails, Schabes found. This means that suppliers need to ensure that people who are not legal experts can understand the agreements and documents that are being drawn up, he said. Like many groups, we do not believe that the time it takes to enter a nursing home is conducive to informed decision-making on such arrangements. The reception of care homes is usually a time of crisis for individuals and their families; the resident is in a disturbed state, the choice of care homes may be severely limited, and the resident and family have no idea of the type of litigation that could be linked in the future by a compromise clause. There are pros and cons to arbitration, but it is only after a dispute that pros and cons can be fully weighed and an informed and voluntary decision can be made. More importantly, arbitration proceedings are private and often imbued with confidentiality rules, while court proceedings are conducted in an open public forum and result in a detailed public record. It is the ability to obtain full compensation for victims of illegal offences and the power to punish reckless criminals who give the civilian justice system the power to change industries.