New York Estate Planning & Elder Law Blog
No one wants to find themselves the occupant of a nursing home and yet that is where many people will end up in their autumn years of life. According to the Centers for Disease Control, more than 1.4 million people resided in nursing homes in 2014. A sadly common aspect of life in a nursing home is the possibility of elder abuse. Elder abuse is a topic that few people wish to discuss despite being an issue that merits discussion. Many nursing homes around the country have taken to arbitration agreements as an attempt to limit their liability when it comes to elder abuse. Here’s what you need to know before committing yourself or someone you love to a nursing home with an arbitration agreement.
No Universal Protections
Many states have laws in place to protect elderly residents of nursing homes, even including a right to attorneys’ fees for successful plaintiffs and a recovery for pain and suffering of nursing home clients that survives their death. Such an example of this is the Elder Abuse and Dependent Adult Civil Protection Act in California. The act is designed to protect its elderly citizens residing in nursing homes from physical and financial abuse, providing special legal remedies and damages for senior citizens in nursing homes.
Unfortunately for residents in New York, there is no such law in the state. While the Patient Abuse Reporting Law requires every nursing home employee and all licensed professional, whether or not employed by the nursing home, to report instances of alleged abuse, neglect or mistreatment, it may not be enough. New York offers a nursing home complaint form and an area online to report nursing home abuse but establishes no special legal rights for the victims of elder abuse in nursing homes.
An Undetected Threat
Nursing home elder abuse is also very difficult to detect. Many people who occupy nursing homes are both physically and mentally deficient and prime candidates for never being able to report abuse. Even when it is reported, many nursing homes today are turning to arbitration agreements in an attempt to limit both the reporting of elder abuse and the damages that the nursing homes may be liable for. Arbitration agreements are often a take it or leave it offer presented by nursing homes. Since nursing homes are often a last resort for families looking for people to care for their elderly, many will sign out of fear of being rejected admittance.
Arbitration agreements are problematic for those with elderly family members in nursing homes. Arbitrators who may hear the disputes are not civil servants. Rather, arbitrators are private professionals hired by the nursing homes to hear disputes. Even if both parties must agree on the choice of the arbitrator, the nursing home will know which arbitrator is likely to side with them over the plaintiff.
Privacy is also a key component to arbitration. The details and results of an arbitration are private and not a matter of public record. Therefore, unlike claims of abuse that could be litigated openly in court, claims of abuse in arbitration will remain confidential. This means that potential residents of a nursing home will not have notice of bad conduct.
The problems with arbitration agreements are compounded by the fact that proving allegations of abuse are difficult. The victim of elder abuse is usually diminished in his or her capacity and may not be able to adequately testify to the negative treatment. Furthermore, in a private arbitration, the arbitrator may limit the scope of discovery and refuse to hear certain types of evidence.
Choose Wisely and Protect Yourself
If you or someone you love may end up in a nursing home it is important to perform your due diligence before making the commitment. Conduct your due diligence before you choose a home for a loved one and always adequately review any contracts before you sign. Doing so will not just protect your legal rights but the quality life of a loved one.