Wellborn Paluch, LLP Blog

Wednesday, December 14, 2016

Nursing Homes Can No Longer Require Arbitration

How can incidents of nursing home neglect and abuse be prevented?

Today, as our society is aging and more elderly individuals are becoming incapable of caring for themselves, entering a nursing home may be the only option. Not only is this a difficult decision for seniors and their loved ones, there are many factors that need to be considered when choosing a skilled nursing facility.

In particular, it is crucial that residents are provided with quality care, and that the facility is clean  and safe. While visiting a facility or getting referrals from doctors or other medical professionals is helpful in the decision making process, longstanding problems in the elder care system often do not see the light of day.

One reason for this is that nursing home have long relied on fine print clauses in admissions contracts that require elders and their families to resolve disputes through arbitration. Thus, incidents of abuse and neglect are not litigated in courts, and settlements arrived at through arbitration often contain non-disclosure provisions.

What is nursing home abuse?

In a skilled nursing facility, residents can be abused in many ways, whether physically or emotionally. Physical abuse often involves assault, battery, and sexual assault, but can also include inappropriate physical and chemical restraints or prolonged deprivation of food or water. On the other hand emotional abuse occurs when nursing home patients are verbally abused, ignored or isolated resulting in pain and suffering that adversely affects their well being.

In short, the widespread use of arbitration clauses often concealed these incidents from seniors and their loved ones when selecting a nursing home. While state law requires health practitioners, caregivers and law enforcement agencies to report cases of elder abuse arbitration clauses prevented elders from pursuing these claims in courts.  

In response to the concerns of patient rights groups and state and federal lawmakers, however, the Centers for Medicare and Medicaid Services recently issued a rule barring the use of arbitration clauses by nursing homes that receive federal funding.  In effect, the legal rights of elders to file lawsuits has been restored. In addition, a federally funded facility that continues to use arbitration clauses runs the risk of funds being withdrawn by the CMS.

While the rule only applies to future admissions, it will go a long way to combat nursing home abuse. In the end, if you or a loved one has been the victim of elder abuse or neglect, you should speak with an experienced personal injury attorney.

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