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Advocates Seek to Change Nursing Home Arbitration Clauses

Consumer advocates and attorneys are asking Congress to outlaw the use of forced arbitration clauses in nursing home contracts. Two separate groups sent letters to the U.S. Centers of Medicare and Medicaid Services (CMS) requesting changes to current regulations that allow nursing homes to force new residents into arbitration agreements. The first group consisted of 27 lawmakers and the second was made up of more than 70 advocacy organizations.

One of the letters reportedly stated in part, “Unlike America’s civil justice system that was developed through centuries of jurisprudence, forced arbitration does not provide important procedural guarantees of fairness and due process that are the hallmarks of courts of law… The practice often takes place behind closed doors rather than in a public forum, enabling parties to keep their wrongdoing confidential and hidden from the public.”

What is Arbitration?

Arbitration is a dispute resolution technique that allows for settlement of disputes without going into court. Disputing parties go before a neutral arbitrator instead and present their respective arguments. The arbitrator then makes a determination that both sides are legally bound to follow. If one party does not like the final determination, there is no recourse. The court will not review the decision and there is no appeals process. Many individuals opt to use arbitration due to high cost of litigations a case in court. According to reports, a formal arbitration cost about $2,500 in 2010. By comparison, the average trial cost was approximately $19,000 for the same time period.

What is Forced Arbitration?

Many nursing home contracts include forced arbitration, or pre-dispute arbitration, clauses. These statements prohibit residents and their families from filing lawsuits against the business. Alternatively, any disputes must be settled in front of a third-party arbitrator. New residents and their families are required to sign these clauses before they are accepted into the nursing home. Unfortunately, the need to place a family member in a facility often arises out of medical or financial emergency. The distressing nature of the situation results in families signing a clause that they do not understand.

Among other complaints, the letters to CMS discuss the absence of legal training and adequate decision review within the arbitration process. They also point out the vulnerability of the elderly community and how these forced clauses are.

Some common nursing home litigation topics include:

  • Bedsores – Also referred to as pressure ulcers, these lesions develop on a person’s body when they are left to lie in the same position for extended periods of time. They are one of the most common signs of neglect.
  • Dehydration/Malnutrition – Nursing home staff members are responsible for monitoring the food and water intake of residents. In some instances, they may also need to assist with feeding. When these responsibilities are not adequately handled, dehydration and/ or malnutrition can develop.
  • Physical Abuse/Sexual Abuse – One of the most egregious types of nursing home violations, this occurs when a staff member of caregiver physically or sexually abuses a nursing home resident.

If you or a loved has been the victim of nursing home neglect or abuse, call the Pawlowski//Mastrilli Law Group at (813) 803-6518 for a free consultation. Located in Tampa, our experienced attorneys can assist you in securing the compensation you deserve.

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