Forcing Nursing Home Arbitration for Seniors?

Posted On April 2, 2018 Arbitration Contracts

We consider the door to the courthouse as a path to justice. At times, there are obstacles in that path. When those obstacles get in the way of our seniors and elderly family members pursuing their rights against nursing homes, we should take notice.

Under the Trump administration, the Centers for Medicare and Medicaid Services (CMS) wants to overturn an Obama-era regulation that prevented nursing homes from forcing residents to sign an agreement for private arbitration in case of a dispute.

Now, instead of heading to the courtroom for justice, injured and abused nursing home residents will have to sit at the table with an arbitrator. The American Health Care Association has applauded this move, saying, “Arbitration produces swifter resolution to disputes, compensates residents without undue litigation expense for either party, and reduces the funding burden on the Medicare and Medicaid programs.”

But is that the whole story?

What Does an Arbitration Clause Really Do?

In essence, an arbitration clause binds both parties to the arbitration process for resolving any disputes or claims that arise. It does not prevent a resident or his family from reporting illegal activities or pursuing criminal charges.

The concern about this repeal of the ban on mandatory arbitration boils down to this: if elderly seniors are required to sign arbitration agreements in order to receive care and the care they receive is inadequate or abusive, they have no ability to pursue justice in a traditional court.

What Are the Pros and Cons of Arbitration?

Pros:

• It is a process designed to streamline disputes in order to reach resolution more rapidly.
• It has a reduced overall cost, at least in theory.
• This new CMS rule requires plain language, rather than legal jargon, in order for the agreement to be valid. Nursing home administrators must also sit down and explain the arbitration clause to residents and their families before asking them to sign.

Cons:

• The arbitration proceedings are kept secret, not open. Therefore, if there is a history of mistreatment, there are no records to rely on for a pattern of abusive behavior.
• The arbitration process is final. There is no appeals process. Whether just or not, the decision made is final.
• If a nursing home is sued more than once, which is typical, it may develop a relationship with the so-called neutral third-party arbitrator, which could work against patients with legitimate grievances.
• Arbitrators charge hundreds of dollars per hour to review the case, the pleadings, to talk to the lawyers involved, etc. This drives up the cost of arbitration rendering it much more expensive in practice than a traditional civil lawsuit in court.
• Most if not all residents and their family members are provided the arbitration paperwork buried amongst other documents at one of the most stressful times of their lives- when they’re placing a loved one in a nursing home. Many residents and their family members do not read the paperwork because they are much more concerned about ensuring a smooth transition to the nursing home for their loved one.
• The arbitration contracts are written by the nursing home and in terms that favor the nursing home. Many times the rules of arbitration differ from the typical rules in a civil court and favor the nursing home.
• Arbitration takes away an individual’s constitutional right to have their disputes decided by a jury of their peers. Instead, in arbitration, the dispute is decided by one or in some cases two or three individuals who are paid arbitrators and not ordinary citizens.
• Most, if not all arbitration forums limit the amount of discovery that may be conducted before arbitration. For the plaintiff (the injured person) who bears the burden of proof, it is essential to conduct discovery. It is much more difficult to prepare a case with limited discovery.
• Arbitration awards are lower than jury verdicts in a typical civil lawsuit. This is why virtually every company, whether your cell phone company or a nursing home, fight for arbitration. These companies know they will be forced to pay much less to you the injured person through arbitration.

Many people in the senior care industry are concerned. With a mandatory arbitration provision in place, nursing home residents have fewer rights and no way to remedy them. If your loved one has been injured by a nursing home, now is the time to evaluate your legal rights. Contact Siegel Law at (562) 645-4145 to talk to an experienced elder abuse attorney.