When we send our beloved elders to a nursing home, we expect them to receive the care and attention need to live happy, comfortable, and dignified lives. Unfortunately for many seniors and their families, nursing home abuse and neglect is an all too common problem facing our nation’s elder care and assisted living system. While we expect nursing homes to do the right thing, nursing home abuse allegations can often lead to time consuming legal fights to recover damages and hold the facility accountable.
To make matters worse, many nursing homes have the power to insert clauses in their contracts with residents that strip away their right to due process in a court of law and instead require any disputes be settled in an administrative process known as arbitration. Because many families make the decision to place a loved on in an assisted care facility under duress, they often overlook key clauses in nursing home contracts.
What are predispute binding arbitration clauses?
Predispute binding arbitration clauses are contract clauses requiring nursing home patients and their families settle and disagreements over quality of care issues outside of court, through an arbitrator. While many powerful entities tout the independence and experience of arbitrators, the individuals chosen to oversee such proceedings are often anything but unbiased.
The Centers for Medicare & Medicaid Services (CMS) attempted to address this issue nationwide late last year after by requiring all nursing homes accepting funds from CMS to remove predispute binding arbitration clauses. Such protections would have given families of the estimate 1.5 million seniors living in 15,000 facilities enhanced legal rights to file claims over nursing home abuse and neglect allegations.
However, the American Health Care Association, an industry group representing most nursing homes in the country, filed a lawsuit in U.S. District Court for the Southern District of Mississippi challenging the order. That court sided with the lobbyist group on the grounds only Congress, not CMS, held the power to modify the legality of predispute binding arbitration clauses.
Hopefully Congress will eventually take action on the issue but in the meantime, families thinking about putting a loved one in a nursing home should carefully examine the record of facilities under consideration. Additionally, families should thoroughly scrutinize any contract before placing a loved on under the care of a nursing home. While some of this may seem overwhelming, an experienced and dedicated New York elder lawyer can help families make sense of their legal rights when their loved one enters a long term care facility.