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Mandatory Arbitration Has No Place in Providing Adequate Nursing Home Care

A New York Times op-ed that was recently published criticized the proposed rules from the Centers for Medicare and Medicaid Services which would not ban mandatory arbitration in nursing home care disputes. Pre-dispute arbitration clauses in nursing home contracts force families, patients, and consumers generally to engage in private arbitration rather than in a lawsuit when elder abuse and neglect are present at a nursing home. The arbitration rules would not be “mandatory” for patients and families to sign and nursing homes would be required to affirmatively explain and disclose the terms of the pre-arbitration clauses.

Arbitration Generally

Arbitration is an out-of-court procedure where the two parties meet and discuss the merits of their case in front of what is generally a neutral third party (the arbiter). This neutral third party then decides the outcome of the case, and what penalties or corrective actions one of the parties must take. There is generally no appeal to a court of law and the arbiter’s decision is final (if an arbitration is binding on the parties). Unlike mediation where the mediator will try to have the parties come to a resolution on their own or compromise, arbitration is a decision for one party or the other.

The procedures are generally informal. Arbitration agreements are typically favored by companies as it gives them an advantage, especially if they draft the contract and individuals have little bargaining power to change the terms of the contract, allowing companies to avoid lawsuits via arbitration. Another reason why large companies like arbitration is because there are no public records of the settlements or arbitrated cases. This prevents other potential plaintiffs from finding and engaging the company for violations.

Pre-Dispute Arbitration Clauses in Nursing Home Contracts

In elder abuse and neglectful nursing home care the dispute is about getting the proper medical care vs. trying to recover damages for harm done. If families are subject to mandatory arbitration and the contracts heavily favor the nursing homes (they choose the location of the arbitration and the arbiter), then nursing homes could be incentivized to cut-corners when providing care to elderly persons. Nursing home abuse and neglect can lead to medical issues such as severe falls, sepsis, bed sores, malnutrition and dehydration, and medication errors among others. Mandatory arbitration would give these families no legal recourse to help their loved ones get the care they deserve or ensure that the nursing homes provide proper care by changing their behavior based on a legal order.

Proposed Non-Mandatory Arbitration Clause Rules

While the rules would not make signing the arbitration agreement a condition of admittance, it would create a “gray area” of what would be considered adequate disclosure. There would be no bright-line for families to look to and every nursing home could approach it differently. Furthermore, as the op-ed points out, nursing home care is a stressful situation for all members of the family and the person entering care would expect adequate care for their needs and have a fulfilling life through their remaining years. The legalese of informed consent to not sign a pre-dispute clause, the possible pressure to not sign in order to admit for care, and the misunderstanding that these arbitration clauses are likely binding (thus preventing lawsuits), all create an unworkable legal and administrative framework.

Instead of focusing on the care of elderly persons as they age, there would be more disputes about adequate explanation and how far does a nursing home have to go to meet such a standard – exacerbating the problem of nursing home neglect and abuse.

About Levin & Perconti

Levin & Perconti is a leading personal injury law firm. One of the areas of expertise is nursing home neglect. Our legal team includes attorneys with years of handling similar cases with successful resolutions. We have obtained more than $160 million in settlements or verdicts for our nursing home neglect or abuse clients. We are passionate about making sure that we help put an end to nursing home neglect of our elderly citizens. We care about our clients and always fight for their rights. If your loved one was the victim of neglect or abuse in a nursing facility contact Levin & Perconti to discuss your case today.

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