Legislation Banning Arbitration in Nursing Homes Protects Residents’ Access to Justice
by Steven M. Levin, as published in the Chicago Tribune
Every day, families nationwide face the difficult task of finding a suitable long-term care facility for their aging loved ones. This decision is often made in the middle of a crisis, and people feel pressured to get through the admissions process quickly to secure a spot for their elderly relative.
In the piles of forms to complete and documents to sign, consumers can easily miss a critical clause: arbitration agreements that are hidden in plain sight within the fine print of the contract. These agreements deny consumers their right to sue the facility caring for their loved ones no matter what happens to them, even in cases of deadly medical errors or outright abuse. Stripped of their access to the justice system, residents and their families are forced into a secretive dispute resolution process that is completely controlled by the powerful owners of these facilities.
The Fairness in Nursing Home Arbitration Act, just introduced in the U.S. House of Representatives by Rep. Jan Schakowsky (D-IL 9th) and Rep. Linda Sanchez (D-CA 38th), bans long-term care facilities from forcing nursing home residents and their families into signing these pre-dispute, mandatory and binding arbitration agreements.
This legislation is vital to protecting some of our most vulnerable citizens from the excesses of the profit-driven and inadequately regulated nursing home industry.
Nursing home residents who receive poor care or are neglected or abused have few outlets for their complaints. The administrative agencies charged with governing these facilities are overburdened and under-resourced. Filing suit is sometimes the best recourse for bringing attention to problems such as short staffing and poor training. And lawsuits are often the only way to get compensation for those who have suffered due to nursing home mismanagement.
These arbitration clauses not only terminate families’ right to sue the long-term care facility, but they also serve to limit the compensation families can receive. In many agreements, the facility gets to select and hire the arbitrator, creating a profound conflict of interest. To make matters worse, once arbitration has ended, residents and their families are responsible for paying their lawyer and part of the arbitrator’s fees. And decisions are often kept secret — so other consumers can’t know how many complaints have been made and settled at a facility.
People sign these agreements unknowingly or without fully understanding the implications of them because the process of securing care is so overwhelming. The nursing home industry has played on this desperation for long enough.
Americans must be able to hold the nursing home industry accountable for the care it delivers. Congressman Schakowsky, long an advocate for consumers’ rights, is to be commended for offering up legislation that strengthens our ability to protect nursing home residents. Families should not have to sign their legal rights away just to secure care for a loved one in need.
This Op-Ed was published December 14, 2019 in the Chicago Tribune and submitted by Steven M. Levin, a founding partner at Levin & Perconti, Attorneys at Law based in Chicago, Illinois. He was one of the first attorneys in the country to handle nursing home abuse and neglect cases and remains known as a top litigator in the field.