The New York Times reported on the great victory for nursing home residents. Currently, many nursing homes require patients seeking admission to first agree to resolve disputes through binding arbitration, relinquishing the court system. However, CMS has issued new standards for admitting residents that prohibit mandatory arbitration in admissions agreements. The new rule bars any nursing home that receives federal funding from forcing its residents to resolve any disputes in arbitration, instead of court. Residents should not give up their constitutional right to a jury trial just because they need nursing home care.
Clauses embedded in the fine print of nursing home admissions contracts have pushed disputes about safety and the quality of care out of public view. Arbitration clauses have also stymied the families of nursing home residents from getting justice, even in the case of murder.
“With its decision, 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: their day in court.”
The dangers of private arbitration was recently discussed in an article in The New Republic.
“Arbitration agreements force victims of nursing homes out of the legal system when seeking redress. They also give them no ability to appeal rulings. Nursing homes can use the same arbitrators repeatedly, while an aggrieved family only sees them once;this biases the system, as arbitrators have incentives to rule in favor of the nursing home if they want to be chosen again for future mediations. The costs of the arbitration are often split between both parties, which places a disproportionate burden on the plaintiffs as well. (Most families, after all, are not as wealthy as your average nursing-home chain.)”
Even the American Health Care Association (not exactly an unbiased party) found in 2009 that plaintiff awards are 35 percent lower through arbitration than through the courts.
“The prevalence of wrongdoing at nursing homes is shocking—from preventable falls to patient neglect to financial theft to even physical and sexual abuse. “I’ve seen photos of seniors in compromising positions put on social media,” Tad Thomas, a consumer attorney in Kentucky who has worked on several long-term care cases says. “It’s really sad.” The New York Times wrote earlier this year about a 100-year-old woman murdered by her 97-year-old roommate, whom the facility knew was at “risk to harm herself and others.”
According to a report from the Inspector General of the Department of Health and Human Services, 22 percent of Medicare patients suffered “adverse events” resulting from the medical care in nursing facilities, and another 11 percent experienced temporary harm; more than half were preventable and due to failures in treatment or monitoring.
By Ray Mullman on September 30, 2016