Mandatory Nursing Home Arbitration Ban Not Part of New Proposed Rule

Despite forceful calls by House Democrats and the Consumer Financial Protection Bureau’s (CFPB) for a ban on mandatory nursing home arbitration agreements earlier this year, the new proposed rule by the Centers for Medicare and Medicaid Services (CMS) doesn’t contain any such provision.

The agency has toyed with requiring such a measure in the past, but it’s most recent proposed rule, while acknowledging “concerns” about forced arbitration, doesn’t go so far as to ban it.

This move was sharply criticized by The New York Times’ Editorial Board in an opinion titled, “Nursing Home Residents Still Vulnerable to Abuse.”

Arbitration clauses, for those who may not be familiar, are popular in a range of industries and are highly favored by corporations because they essentially skew dispute resolution in their favor, effectively protecting them from liability.

An increasing number of nursing homes have implemented mandatory arbitration agreements – either requiring them to be signed as a condition of admission or else thrusting them inconspicuously in a large stack of paperwork without adequately explaining the purpose or effect of signing.

And to be clear: The effect of signing is that one essentially forfeits the right to have any disputes resolved in a court of law. Instead, matters must be decided by an arbitrator. There is no obligation to follow the law or previous legal precedent. Because arbitrators and arbitration firms often rely on contracts from nursing homes and other corporations, their outcomes tend to favor those entities. Even where cases are decided against corporations, damage awards tend to be far lower in arbitration than one might expect in civil litigation.

This is especially disturbing in West Palm Beach nursing home abuse cases because we aren’t talking about money here. We’re talking about quality of care. Medicare and Medicaid often pay the bills for this care, but when the quality of care falls below acceptable standards, patients’ well-being is in jeopardy.

Many nursing home abuse cases stem from claims that include:

Broken bones (particularly arms and legs);
Pressure sores/ ulcers;
Dehydration;
Malnutrition;
Excessive falls;
Physical abuse;
Neglect of basic needs.

Do we really want to deny these vulnerable individuals the right to have these complaints resolved before a court? It’s also worth pointing out that arbitration resolution is not public. That means that even if an arbitrator does decide a nursing home was engaged in abusive or neglectful practices, the public may be deprived of any record of that. This leaves other patients at a disadvantage – particularly if they later file a similar lawsuit – but it also removes the nursing home’s incentive to take meaningful action to prevent such incidents in the future.

The proposal by CMS does say that arbitration agreements moving forward can no longer be a condition of admission. They also have to take some steps to disclose and explain those clauses. That’s a good first step, but it doesn’t go far enough. Our experienced injury attorneys know that the nursing home admission process is stressful as it is. Having to worry about inadvertently signing away a significant portion of one’s legal rights should they be victims of abuse shouldn’t be part of that concern.

Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights. Now serving Orlando, West Palm Beach, Port St. Lucie and Fort Lauderdale.

Additional Resources:

Nursing Home Residents Still Vulnerable to Abuse, July 25, 2016, Editorial Board, The New York Times

More Blog Entries:

Some State Laws Fail to Protect Elder Exploitation on Social Media, July 31, 2016, West Palm Beach Personal Injury Lawyer Blog