Nursing home arbitration agreements under attack
A proposed rule released by the Centers for Medicare & Medicaid Services (CMS) in July is calling for a change to forced arbitration agreements in nursing facilities across the country.
CMS has proposed that when facilities present agreements to its residents, that those agreements must be explained, and acknowledged; the agreements must be entered into voluntarily; that arbitration sessions must be conducted by a neutral arbitrator and that admission into the facilities can not be contingent upon the resident or resident representative signing and binding agreement.
Proponents of this change have been committed to transforming the way nursing homes present agreements to patients and their families for years. Thirty-four U.S. Senators and attorneys general from 15 states have also called for banning the agreements.
Forced arbitration clauses have been acting as a legal shield for negligent nursing homes for years.
The clause is usually hidden deep within a stack of papers that is handed to a family fraught with worry over admitting their loved one to a nursing facility. Families are unaware they just signed away their right to take disputes over patient care to court.
Signing an arbitration agreement means that in the event that a dispute is not amicably resolved, you’ve agreed to bring the problem before professional arbitrators, rather than file a lawsuit against the company for negligence or wrongful death.
Signing an arbitration agreement is generally not in the best interest of the family. There is a high cost involved, as families who enter arbitration must pay their share of the arbitrator’s fee, which could be upwards of hundreds of dollars an hour.
Arbitration is also done behind closed doors, in an effort to protect the nursing home’s public image, whereas court proceedings produce a public record that can be used to help inform future industry practice, as well as develop case law. Arbitration proceedings and materials are protected by confidentiality rules and rarely do they see the light of day.
There is no right of appeal in arbitration, and none of the strict procedural rules that courts follow are adhered to.
Various studies have proven that requiring disputes be resolved in arbitration results in defendant nursing home facilities paying less in damages to deserving families than a judge, and jury would order.
What You Should Do
If you find arbitration paperwork in a nursing facility’s admission packet, we urge you to ask the person representing the nursing home if a signature is required as a condition of admittance to the facility. If they respond with yes, you should seriously reconsider placing your loved on in the home. If they respond with no, you should write on the arbitration documents “refused to sign.”
How The Carlson Law Firm Can Help
If you or someone you love has been seriously injured or died as a result of nursing home negligence or abuse, call our nursing home attorneys immediately. We have a team of skilled professionals who are extremely knowledgeable in the field of nursing home litigation.
Nursing home companies, employees and caregivers for elderly must be held responsible for injuries and death resulting from neglect and negligence in nursing homes in Texas and across the nation. We care. We can help.
- Written by Jill Fowler