We have all heard of the horror stories that go on in nursing homes. That’s part of the reason why it always pains us make the decision of putting our parents and grandparents in a nursing home.
The more nursing home facilities get caught abusing elderly adults, the more we hear about families suing those nursing homes. The decision to send a loved one to a long-term care facility is difficult enough because most of the time, that loved one took care of us at one point. The last thing we need to worry about is whether or not the staff will physically or sexually abuse them. We’d also feel a lot safer knowing that we can take legal action in case of medical malpractice and mistreatment. Unfortunately, those rights may be taken away under the Trump administration’s newly proposed rule.
About the New Rule
According to an article in the New York Times, the Trump administration wants to void the Obama administration’s 2016 ban on arbitration agreements for nursing home residents.
An arbitration agreement is commonly found in many contracts in order for a person to receive products, services and employment. When you sign this agreement, you agree to bring any legal issues you may have against the entity to arbitration instead of filing a lawsuit in court. Unlike court, arbitrations take place before an arbitrator who is chosen by both parties.
The downside of arbitrations is that it is common for the parties to not have access to as much information from the other side, like in a lawsuit. Also, it is extremely rare for the arbitrator’s decision to be appealed, which is why many entities prefer these agreements. Specifically, nursing home facilities use arbitration agreements to ban residents and their families from suing the nursing home for injuries caused by abuse or neglect.
A Closer Look at Nursing Home Abuse
Nursing home abuse (including that of financial, emotional, and psychological) is unfortunately very common. The National Center on Elder Abuse (NCEA) found that the National Ombudsman Reporting System, in 2014, over 14,000 of approximately 188,000 complaints involved abuse, gross neglect, or exploitation.
The NCEA also reported that in 2000, 44% of over 2,000 nursing home residents had been abused. 95% of the residents who were surveyed had been neglected or had seen others neglected. Also, 50% of the nursing home staff admitted to mistreating nursing home patients.
With these high numbers of nursing home neglect, mistreatment and abuse, does implementing forced arbitration agreements truly sound like the most ethical option/decision?
Common Worries If the Rule Is Approved
If a consumer refuses to sign a contract including the arbitration agreement, he/she can be denied admission to the facility. A typical arbitration states that the resident gives up their right to a jury or court trial in case of medical malpractice or injury. Instead, the status of malpractice will be decided by neutral arbitration.
Under arbitration, if the victim suffers serious injury caused by the facility, they cannot go to court. According to an article in Forbes, arbitrators do not have to follow the law, and decisions are rarely able to be appealed. In order to maintain the importance of civil rights and consumer protection, arbitration must be voluntary.
The attorneys general of 16 states wrote a letter to the federal Centers for Medicare and Medicaid Services expressing their concerns on the proposed rule. These opposers worried that arbitration agreements “may be neither voluntary nor readily understandable.” Also, because Medicaid and Medicare report spending over $80 billion per year on nursing home care, these facilities “should not be able to cover up wrongdoing by forcing patients to relinquish the right to sue.”
Defenses Made by the Trump Administration
The Trump administration argues that removing the ban on arbitration isn’t that bad. In fact, they made these points in order to combat distress for those seeking to place their loved ones in a nursing home:
- Banning arbitration imposes “unnecessary or excessive costs on providers” of nursing home care. Furthermore, “the money that nursing homes spend on lawsuits could be better used for caring patients.”
- Arbitrations “allow for the expeditious resolution of claims without the costs and expense of litigation.”
- According to Matt Webb, senior vice president with the U.S. Chamber of Commerce’s Institute for Legal Reform, arbitration “is a system that is simpler, fairer and faster for all parties connected.”
- There will be several requirements for arbitration agreements, including that they must be “written in plain language and be explained to the consumer in a form and manner that he or she understands.” (Nursing home industry representatives of the American Health Care Association claim these requirements to be “hopelessly vague.”)
Our Thoughts on the New Rule
Although the Trump administration has not made an update on when or if the requirement of arbitration will occur, we believe there must be something done to prevent this from happening.
- Eliminating forced arbitration agreements puts the power back into the nursing home residents’ hands when abuse and negligence claims arise.
- Mandating arbitration agreements as optional or voluntary gives the resident and the family the option to go through arbitration if they believe it will have a more favorable outcome than litigation.
- The conditions and risks that nursing home residents face must be brought to light. Although the elderly shouldn’t even have to go through these issues, adequate recourse must be put in place if the victim has suffered bad conditions and mistreatment.
- Stronger regulations regarding the care provided by nursing home facilities need to be put in place to protect older adults.
The Law Offices of Ivan M. Diamond is committed to protecting and representing those who cannot protect or represent themselves. We believe it is important to spread the word about the possibility of nursing home arbitration agreements and to urge the Trump administration to keep the ban on them.
Federal officials have already been reported issuing guidance to nursing home inspectors that could possibly reduce the monetary penalties for violations of the federal health and safety standards. The government should not be able to take away the rights of the elderly and their families. The decision to send a loved to a nursing home is painful enough. Who needs the added stress?
Sign our petition today if you agree that forced arbitration needs to be permanently banned from nursing home contracts.