Suing Nursing Homes Just got a Little Easier

Jeff Roberts & Associates, PLLC

Nursing homes that receive federal funding are banned from forcing claims like sexual harassment, wrongful death or even elder abuse to go to arbitration, otherwise known as the private system of justice. This was enforced by a federal agency that handles over $1 trillion in Medicaid and Medicare funding. On Wednesday, a rule that bars any nursing home that receives federal funding from enforcing its residents to resolve any disputes in a private system of justice, instead of the court went into effect. This rule was issued by an agency within the Health and Human Services Department. Nursing homes with over 1.5 million residents would be affected by this rule.

Clauses written in the nursing home admissions contracts have hidden disputes about the quality of care and safety from the public view. The legal costs for the nursing home industry are now reduced due to this system. Appropriate justice for the families of nursing home residents are been denied even in the case of murder. This was discovered in a case of a 100-year-old woman who was found murdered by her roommate in a nursing home. This case was blocked from court initially. There is another case of an elderly woman who died from a head wound in Murrysville, Pa. The New York Times made it a subject for the front-page article last November.

Senator Patrick Leahy, a Democrat from Vermont, said on Wednesday, “The fact is that, many Americans today must decide between giving up their getting adequate medical care and legal rights.’’

The change has really affected the nursing home industry. On Wednesday, the president of the American Health Care Association, Mark Parkinson said in a statement that the change on arbitration exceeds the statutory authority of the agency. Officials in 16 states and the District of Columbia urged the government to stop funding all nursing homes that make use of the clause that lead to the new rule on arbitration arguing that arbitration kept a series of wrongdoing covered from prospective residents and their families.

The Centers for Medicare and Medicaid Services, an agency under Health and Human Services, has restored a fundamental right of millions of elderly Americans across the country the appropriate justice they deserve. It is the most relevant overhaul in more than two decades, regarding the agency’s rules guiding federal funding of long-term care facilities. This new rule by the Obama administration is the most recent effort to control the arbitration’s justice system that was built for more than a decade.

The Consumer Financial Protection Bureau, which is the nation’s consumer watchdog, revealed in the draft of a rule that would prevent other financial firms and credit card companies from using arbitration clauses to bar consumers from coming together in a class-action lawsuit. This occurred in May. Various industry groups did not support the elimination of arbitration through legislation that the Democrats, including Mr. Leahy were proposing. The Health and Human Services does not require congressional approval before it can be taken into action. This rule on nursing homes could be challenged in court just like other rules brought forward by the administration. By November, the rule is scheduled to go into effect despite those challenges. The new rule can only be applied to future admissions.

The nursing home industry has said that arbitration offers an inexpensive alternative to court and permitting more lawsuits. Some nursing home maybe forced to shut and costs of these homes will rise to the ones that stay open.

To some elder care lawyers and government officials, they believe that arbitration potentially covers the nursing home industry’s embarrassing practices, which is a totally different rationale. In July 2015, the nursing home rule was first proposed and was directed at increasing disclosure after some patient groups shared their concerns about the widespread use of arbitration. This rule was re-examined by the agency.

A step further was taken in the final version of the rule, which involves cutting off funding to facilities that still include the arbitration clauses as a requirement for admission. The elder care lawyers say that most people admitted to these facilities, are going through one of the most stressful moments of their lives. The elder care lawyers say that they do not fully understand what they are signing because they are distraught and desperate for a room. Most times, this is irrelevant because judges are compelled by the decisions made in 2011 and 2013 by the Supreme Court, which allows the widespread use of arbitration clauses. It becomes virtually impossible to overturn clauses once the decisions have been made, even when signed by the most vulnerable nursing home residents. An arbitration clause signed by an illiterate man who could neither read nor sign was not overturned by the appeals court because they believed that illiteracy is not enough grounds for the over turn of an arbitration agreement. Over the last 10 years, these clauses have ended up changing things like employment agreements, student loans, and cellphone contracts.

Many companies believe that arbitration provides a simpler, faster and inexpensive alternative to court, and justice can be easily reached without delays and headaches. Although, the use of arbitration clauses has spread, very little is known about what happened to those who accepted them were involved. Because arbitration is strictly confidential, those claims were greatly anecdotal since there is no record of their outcome in the federal database.

After a lengthy investigation, The New York Times tried to uncover the truth by trying to get inside these secretive proceedings. To do so, They went through records from over twenty-five thousand arbitration cases between the year 2010 and 2014. They also interviewed hundreds of arbitrators, judges, lawyers, and plaintiffs in 35 states. These proceedings hold little similarity to the court. It is usually conducted in the offices of the company’s lawyer. The Times discovered many troubling examples where cases of abuse and neglect were hidden from the public because they were blocked from court.

For example, In May 2014, a resident suffering Alzheimer’s was assaulted sexually by residents at a nursing home in Lemon Grove, Calif. After following investigations by the state’s department of public health, it was found that the nursing home did not protect the woman from such incidence. Because of the arbitration clause, the case was scuttled in court, after a while, her family gave up and settled with the nursing home.

If you are having trouble with a family member or loved one and their care in a nursing home, please do not hesitate to call Jeff Roberts & Associates, PLLC at (615) 205-0904. We would be more than happy to speak with you about your concerns.

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