Alabama Injury Law Blog
Placing a loved one in a nursing home or long-term care facility is one of the toughest decisions a family will face. Sadly, abuse and neglect occur far too often in nursing homes. The National Center on Elder Abuse puts the average number of yearly cases of elder abuse at more than 2-million. 60% of those are due to neglect, and the Center found that over 90% of nursing homes were not adequately staffed to take care of their patients. Unfortunately, most all of these elder abuse cases never see the inside of a courtroom because, until recently, most nursing homes required their residents to consent to binding arbitration, which would decide a claim if it arose. Arbitration is an alternative method of resolving disputes without court intervention. Parties to the dispute submit their claims to an arbitrator, who reviews the evidence submitted by both parties and issues a decision. Unlike the court system, a party to an arbitration dispute has little to no redress in the event they disagree with the arbitrator’s decision.
Recently, a move was taken that will make it easier for families to seek justice against elder abuse. The Department of Health and Human Services has issued a new rule to prevent long-term care facilities that accept Medicare or Medicaid from forcing residents into arbitration. The changes on arbitration were thrust to the forefront after officials in 16 states and the District of Columbia insisted the government eliminate funding to nursing homes that use arbitration clauses. The primary allegation was that arbitration kept patterns of wrongdoing hidden from would-be residents and their families because arbitration proceedings and decisions are confidential and do not take place in a public forum like a courtroom. The changes are part of an overhaul by the by the Center for Medicare & Medicaid Services (CMS) of consumer protections at long-term care facilities.
“We are requiring that facilities must not enter into an agreement for binding arbitration with a resident or their representative until after a dispute arises between the parties,” reads the rule. “Thus, we are prohibiting the use of pre-dispute binding arbitration agreements.”
In the past nursing homes required patients to agree to an arbitration agreement contained in the patient’s contract with the facility, but now the patient has the option to agree to arbitration or to turn it down if they choose. The new rule, which went into effect Nov. 28, 2016, will have “no legal effect on the enforceability of existing pre-dispute arbitration agreements,” reads the document. So, if an abused elder patient entered into an agreement before October 28, 2016, then the patient is bound by the terms of the agreement. But if an agreement is entered into after that date, then there will be no mandatory arbitration.
Sen. Patrick Leahy (VT) has long been a champion of victim’s rights in cases of elder abuse and neglect. Leahy see’s the new changes as a move in the right direction. “It is simply unacceptable to provide taxpayer dollars to organizations that deny consumers their day in court,” said Leahy in a statement. “Today’s rule is a small but important victory in the long battle to root out these secretive, complicated arbitration clauses that favor corporate interests over consumer rights.”
Susan Harley, Deputy Director of Public Citizen’s Congress Watch Division claims that arbitration clauses can be used to prevent nursing home residents from filing lawsuits to seek compensation for fraud, abuse, or neglect, “forcing them instead to seek redress before corporate-friendly arbitrators, with hearings held in secret and few grounds permitted for appeal. Nursing home admissions can be a stressful and confusing time for seniors and their families,” explains Harley. “They are in no position to evaluate the coercive fine-print terms in contracts, appreciate the critical rights they are giving up by entering into a pre-dispute arbitration agreement or walk away from the contract if they object to rip-off provisions.”
Sen. Leahy says that patients and their loved ones should be selecting a long-term care facility based on factors like cost, quality of care, and proximity to family instead of contractual fine print. Says the senator, “These clauses are not in the interest of the consumer, yet the sad reality is that today too many Americans must choose between forfeiting their legal rights and getting adequate medical care.”
The law firm of Hollis Wright handles nursing home and elder abuse cases. If you or a loved one believes that you have been harmed by the neglect or abuse of a nursing home and/or its staff, contact the firm of Hollis Wright for a free case consultation. All cases are handled under a contingency fee agreement, which means that there are no fees or expenses unless we obtain a successful recovery for you.