Arbitration Clauses Still A Problem

If   a loved one was the victim of abuse or neglect in a nursing facility, most people would assume that they could sue the nursing home to have their day in court. However, this might not always be the case. Depending on the language of the contract many sign when entering or placing a loved one in a nursing home, some people may never see the inside of a courtroom as the Legal Examiner reports.

Many nursing homes include in their contract for services something called an arbitration agreement. What this means is that any legal issues that arise with the home – even wrongful death claims – must enter into a process called arbitration. In arbitration, there is no courtroom. There is no judge or jury.

Arbitration rarely presents the possibility to seek or present evidence. Often, the proceedings are confidential and are presided over by arbitrators who are often employed by the defendant. Also, there are very few opportunities to appeal the decision of the arbitrator. Often, their decisions are final and cannot be reviewed by a higher court.

In September 2016, the Department of Health and Human Services Centers for Medicare and Medicaid Services (CMS) made steps towards curtailing this practice. They issued an industry-wide ban for nursing facilities receiving federal funds from forcing residents and their family members into the arbitration process. They also made it clear that residents would not be forced to sign binding arbitration agreements as a condition of admission.

However, the American Health Care Association – an industry trade group for long term care – sought their day in court. They were successful in preventing the rule from taking effect – a judge in Mississippi issued an injunction, halting the implementation of the rule unless CMS appealed.

CMS did not appeal. Instead, under new leadership, they decided to “revise” the rule. Instead of banning arbitration clauses, the new rule instead states that they must be set forth in “plain language” and explained to the resident or their representative.

Have you or a loved one been the victim of abuse or neglect while a resident in a nursing facility? Let the attorneys at the law offices of Schenk Law represent you. We can help you get the compensation you deserve. Call today.