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Under a strong spotlight: mandatory nursing home arbitration

The question is simple and eminently straightforward, to wit: Should nursing home administrators in New York and across the country be able to require prospective patients to agree to mandatory arbitration to resolve disputes as a prerequisite to home admittance, thereby surrendering their right to litigate a contested matter in court before a judge and jury?

Industry principals express near unanimous agreement on that point. They argue that trials are prohibitively expensive and that legitimate grievances can be fully addressed and equitably resolved through the quicker and more informal process marked by arbitration.

That is unquestionably the position of the Trump presidential administration, as noted by comments made recently by government spokespersons stressing that "arbitration agreements are, in fact, advantageous to both providers and beneficiaries." The administration strongly supports the repeal of a rule issued during the preceding Obama administration that sought to undo the "arbitration only" clauses that commonly feature in nursing home contracts.

Critics of the administration's view are neither few nor silent, though, and smooth sailing for pro-arbitration adherents is anything but assured.

In fact, notes a recent New York Times article on the debate surrounding private binding arbitration to resolve disputes in the nursing home industry, reaction to recent comments from administration officials "has been overwhelmingly negative" in the general public.

An oft-cited fear expressed by critics is that industry wrongdoing is less easily spotlighted when patients have surrendered their right to sue.

The Obama-era rule striking down arbitration-only clauses was stillborn in the sense that a federal judge blocked its enforcement in court last year pending a trial to fully consider it.

The future concerning patients' agreement to binding arbitration as a condition for getting into nursing homes thus remains flatly uncertain presently.

We will be sure to keep readers fully informed of any material developments that occur.

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