The Centers for Medicare & Medicaid Services (CMS) recently published a historic new regulation that prohibits nursing homes receiving federal funds from using pre-dispute binding arbitration agreements. Pre-dispute binding arbitration agreements are usually presented to residents upon admission to the nursing home and residents are often unaware that by signing them they are giving up their rights to go to court. These agreements ban all claims by residents from being litigated in courts, including claims involving elder abuse, sexual harassment and wrongful death, among other things. The decision to ban these agreements is the first time a federal agency has ever issued a rule providing such sweeping protection of the rights of injured people to access the public courts.
AJMLS Professor Lisa Tripp is a leading scholar in this area and CMS cited two of Professor Tripp’s articles in support of this pioneering regulation. She was also quoted in the preamble: “Tripp notes that ‘residents of nursing homes are frail and elderly people who are completely dependent on the facility and its employees for their safety and health. Thus, many residents and their families would not oppose the arbitration provision because they are fearful of antagonizing the facility.’” If you see Professor Tripp around campus, be sure to congratulate her on her accomplishment and thank her for her work on behalf of nursing home residents across the country.