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Federal Government Looks to Eliminate Forced Arbitration in Nursing Homes

When Dean’s dementia worsened, his wife Virginia realized he needed more help than she could offer. After much consideration, the family decided to place Dean into a Minnesota nursing home. However, they noticed weight loss within the first two weeks of residency. Soon after, Dean was admitted into the hospital for extreme dehydration. Unable to recover, he died within a month.

When Dean’s family tried to sue his nursing home, they realized they had signed away their rights to litigation. Instead, they signed an agreement that only allows the use arbitration if they have claims against the facilities. Therefore, while Virginia won her claim, she received less than $20,000 after arbitration, expert witness, and attorney’s fees.

Dean and Virginia’s story highlights the problematic stipulation found in most nursing home agreements. Without realizing it, a majority of those admitted into these elder care facilities sign away their right to a trial because they accept a pre-dispute arbitration agreement. This clause prevents patients from taking nursing homes to trial. New proposed regulations propose to limit this practice.

Changing Forced Arbitration Agreements in Nursing Home Contracts

The Centers for Medicare & Medicaid Services (CMS) proposed a federal regulation, which altered the way arbitration agreements were handled in nursing home contracts. In proposed rule, titled “Reform of Requirements for Long-Term Care Facilities,” the CMS asks the federal government to regulate the way nursing homes present arbitration clauses in their contracts.

The proposed regulations ask that:

  • Nursing homes explain the arbitration clause and have acknowledgement of the patient understandings.
  • Arbitration agreements be entered voluntarily.
  • Any arbitration sessions have only neutral arbitrators.
  • Agreement to arbitration clause cannot influence admission into the facility.
  • The agreement not use language that discourages patients from talking to healthcare officials.

The advocates for the change in rules further articulated their concern with the way current practices influence patients. The proposal states,

We are concerned that the facilities' superior bargaining power could result in a resident feeling coerced into signing the agreement. Also, if the agreement is not explained to the resident, he or she may be waiving an important right, the right to judicial relief, without fully understanding what he or she is waiving.

The proposed bill aims to protect residents in the event of negligence and abuse. If passed, the federal rule can make it easier for nursing home abuse victims to hold the facilities and staff accountable.

Why Nursing Homes Push for Arbitration

One of the main reasons arbitration may be desirable for nursing home facilities is because it offers resolution outside of the courtroom. An arbitrator is hired to oversee a case in an informal setting. During trial cases, a judge and jury preside over a formal, public case. During arbitration, attorneys have limited power and say over what evidence can be presented. Once an arbitrator makes a decision, it is difficult to appeal the decision.

Arbitration can limit a victim’s chance of recovering the compensation they deserves. Because the proceeding is not held before a judge or jury, it can be harder for the plaintiff’s attorney to effectively present their client’s case. The proposed federal rules make it easier for victims to sue responsible parties.

At Pintas & Mullins Law Firm, we believe that elders abused in nursing homes should receive full compensation for their pain and suffering. If your loved one was neglected or abused in their senior care facilities, contact our nursing home abuse attorneys today. We serve clients nationwide.

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