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Nursing Homes Contracts under Fire

All new residents entering a nursing home must sign an admittance contract, many of which are hundreds of pages long. Within these contracts, written in fine print, is a clause confirming forced arbitration. Most residents and their families have no idea this forced arbitration clause is part of the contract, and many do not even know what forced arbitration means. We urge anyone currently in a nursing home or considering entering a nursing home to understand this clause and how important it is to your health and safety.

Arbitration

Forced arbitration means the resident and his or her family cannot sue the nursing home in a court of law. Signing this contract is essentially signing away your right to the civil justice system, waiving your right to a trial by jury, and agreeing to enter into arbitration if you are wronged. This means a resident who is grossly abused, neglected, or mistreated in a nursing home must cannot go to court with their claims.

Arbitration is a private, secret process to resolve claims used by nursing homes to avoid costly litigation. The process involves the claimant - the injured resident - the nursing home, and the arbitrator, which is a type of private judge who works for an arbitration company. Nursing homes and arbitration companies work together continuously, and the nursing homes gets to choose which arbitration company will appoint a judge to hear the case.

Arbitrators and arbitration companies are just that: companies. They want repeat business, and as mentioned, they work with nursing homes day in and day out. Nursing homes are some of arbitration companies' best clients. Needless to say, arbitrators are unfairly biased, and tilt their decision toward nursing homes the vast majority of the time. There are countless examples of arbitrators ruling in favor of a victim and never being able to work as an arbitrator again.

In fact, studies show that claimants (injured residents) win arbitration decisions less than 10% of the time. Once a decision has been made, the claimant does not have the right to appeal, and the arbitrator does not disclose how or why they came to their decision.

Admittance Contracts

Entering into a nursing home is already a stressful and confusing time. Most residents have no choice but to sign these contracts and much of the content is never explained. The vast majority of nursing homes have binding arbitration contracts, so even if you did understand what this meant, there is little chance you could find or afford another facility that did not include this clause.

Many industries - from cell phone carriers to credit cards - include forced arbitration clauses, yet very few people know or understand this. It is a loophole in our justice system being exploited by corporations from AmEx to Verizon to our nursing homes to keep the public out of court.

Change to Come, With Your Help

Recently, the Centers for Medicare and Medicaid (CMS) - which fund the majority of nursing home residents' care - announced a proposal that would end forced arbitration for all nursing homes that receive public funding (almost all of them). Under this proposal CMS could require nursing homes that want to receive public funding to stop including forced arbitration clauses in required admittance contracts.

Forced arbitration clauses could still be included in nursing home contracts, but they would need to be fully explained to patients and families and would not be required before admittance. If a nursing home still wants a resident to sign a forced arbitration agreement, the facility would have to ensure they understand what they are signing.

Instead of being in fine print within the massive admittance contracts, CMS' proposed rules would require arbitration clauses to be separate from all other paperwork.

CMS has opened a space for public comment, which ends on September 14. A petition by undersigned by the American Association for Justice at Change.org was created to represent the voice of those who support the CMS proposal. Please sign this petition and forward on to your family and friends, or share to social media. Protect the rights of nursing home residents.

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