Imagine seeing your loved one suffer an avoidable injury after falling in a nursing home. After some investigation, your lawyer finds evidence that the fall occurred because of hazardous conditions at the home. The injury creates significant medical bills and diminishes your loved one’s overall health and quality of life.
Now, think how you’d feel if you were told you couldn’t file a nursing home abuse lawsuit. Instead, you have to privately resolve the dispute — by working with an arbitrator chosen by the nursing home’s owners. Welcome to the unfair world of nursing home arbitration.
What Is Nursing Home Arbitration?
Arbitration is an alternative dispute resolution system. Rather than take your case to court, you present your arguments to a private, neutral arbitrator or panel of arbitrators who issue a binding decision.
Originally, arbitration was used to resolve disputes between businesses. However, in the 1980s, its use expanded to cover a wide variety of consumer disputes, including cases of nursing home abuse and neglect.
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Supporters of arbitration argue that it is less expensive and faster than traditional litigation. In the case of nursing home arbitration, they assert that these efficiencies benefit both nursing home residents and the facilities themselves.
However, there are many problems with nursing home arbitration:
- Arbitration agreements for nursing home residents are usually mandatory, which means residents can’t refuse to sign the agreement if they want to live in the facility.
- When you sign a mandatory arbitration agreement, you’re giving up your Seventh Amendment right to a jury trial.
- Rules of evidence, such as the rules against hearsay, don’t apply in arbitration. This means the nursing home can present unsubstantiated rumors and speculation to discredit the victim.
- Many arbitrators, while allegedly neutral, tend to side with the nursing homes because they want more business. By giving favorable outcomes to the owners of a nursing home, they encourage the owners to contact them again for future arbitrations.
- Most arbitration decisions are confidential, which limits transparency and impedes the ability of watchdog groups to identify patterns of abuse.
- It’s difficult if not impossible to appeal most arbitration decisions.
For these reasons, patient and senior advocacy groups such as the AARP strongly oppose mandatory arbitration clauses in nursing home contracts. In addition, almost all personal injury lawyers and nursing home abuse lawyers also oppose mandatory arbitration.
Many Nursing Home Patients Sign Mandatory Arbitration Clauses
About 90% of the large nursing home chains in the United States require patients to sign a pre-dispute arbitration clause as part of their application. Already, experts believe that more than a million nursing home residents are bound by mandatory arbitration clauses. If a nursing home applicant refuses to sign the arbitration agreement, their application for residency in the nursing home gets denied automatically.
In some communities, patients who are struggling with serious illnesses or dementia must choose between either accepting an arbitration agreement or choosing a nursing home that is far away from their friends, family, physicians, and other support networks. Faced with these options, many people feel as if they don’t really have a choice, and they agree to the arbitration clause. Many don’t understand that they’re giving up their constitutional rights.
Why are nursing homes so strongly in favor of arbitration? The answer is simple: money. Today, the long-term care industry is a multibillion-dollar business, and experts project that it will grow significantly as baby boomers age. To protect its significant profits, the nursing home industry spends almost $26 million per year lobbying the federal government.
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Studies suggest that when nursing homes arbitrate an abuse or neglect claim, the claim costs 7% less than a civil lawsuit and takes three months less to resolve. Meanwhile, the “neutrality” of the arbitration process is up for debate. Compared to civil lawsuits, arbitration decisions are more likely to completely deny the abuse victim’s claim for compensation.
The Long-Term Care Industry’s Battle in Support of Arbitration
In 2016, the Obama Administration changed a Center for Medicare and Medicaid Services (CMS) rule and began prohibiting nursing homes and other long-term facilities (like assisted living centers) from demanding pre-dispute arbitration clauses or requiring arbitration as a term of admission. The American Health Care Association (a nursing home trade organization) almost immediately filed a lawsuit in federal court disputing the new rule’s legality.
Later that year, a federal court in Mississippi issued an injunction, blocking the Obama rule. Then, in June 2017, the Trump Administration proposed a pro-industry rule that revokes the ban and allows nursing homes to continue forcing potential residents to sign arbitration agreements.
In response, more than 1,000 individuals and organizations submitted comments. The majority of these comments came from anti-arbitration advocates and argued that forcing a disabled American to give up his or her Seventh Amendment rights was unconstitutional. Opponents of the Trump rule included 17 state attorney generals and 31 U.S. senators.
Currently, the rule is still pending. The comment period is over, but rather than issue a final rule, CMS has placed the arbitration rule in its “long-term action” category. This means that they do not anticipate further action on the rule until at least July 2018.
Right now, nursing home patients remain in limbo. The Obama administration’s regulation banning mandatory nursing home arbitration agreements is stuck in the courts and on hold. The Trump administration’s proposed rule is pending, and it’s unclear if or when it will become effective. In the meantime, the companies who run nursing homes can continue to demand binding arbitration clauses as a requirement for admission into their facilities.
What Should I Do if a Loved One Suffers Abuse in a Nursing Home?
If you know or suspect that your loved one has been harmed by nursing home abuse or negligence, you should immediately contact a skilled and experienced nursing home abuse lawyer. A lawyer can advise you about your rights, help you determine whether there’s an arbitration clause involved, and prepare your claim for litigation or arbitration.
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Not all mandatory arbitration clauses hold up under scrutiny. However, assessing the validity of an arbitration clause and disputing it in court is a complicated and technical process. Before you dispute a nursing home’s arbitration clause, you should always consult an experienced nursing home abuse lawyer.
Atkins & Markoff: Fighting for Oklahoma Nursing Home Abuse Victims
The nursing home abuse lawyers at Atkins & Markoff understand the complex interactions between the various laws that govern arbitration, medical malpractice, and nursing home abuse and neglect. If you choose us to handle your nursing home abuse claim, we’ll guide you through the process and tirelessly fight to get you fair compensation. To schedule a free, no-risk evaluation, either fill out our online contact form or call us at (405) 607-8757.
Aon Risk Solutions. (2015, November). 2015 long term care general liability and professional liability actuarial analysis. Washington, D.C.: American Health Care Association. Retrieved from https://www.ahcancal.org/research_data/liability/Documents/2015%20General%20Liability%20and%20Professional%20Liability%20Actuarial%20Analysis%20Report.pdf
Edwards, H.S. (2017, November 16). An 89-year-old nun said she was raped in her nursing home. Here’s why she couldn’t sue. Time. Retrieved from http://time.com/5027063/87-year-old-nun-said-she-was-raped-in-her-nursing-home/.
Jaffe, I. (2017, August 21). Under Trump rule, nursing home residents may not be able to sue after abuse. NPR. Retrieved from https://www.npr.org/2017/08/21/544973339/trump-rule-could-make-it-harder-for-nursing-home-residents-to-sue-for-abuse.
Medicare and Medicaid programs: Long-term care facilities: Arbitration agreements. Centers for Medicare & Medicaid Services, Federal Register vol. 82 no. 109. (2017, June 8). (To be codified at 42 CFR Part 483). Retrieved from https://www.regulations.gov/docket?D=CMS-2017-0076.
The content provided here is for informational purposes only and should not be construed as legal advice on any subject.