New Arbitration Rule Violates the Rights of Vulnerable Nursing Home Residents
Legal rights will once again be stripped away from elderly and disabled residents in nursing homes. On July 16, 2019, the Centers for Medicare & Medicaid overturned the ban on nursing homes using arbitration agreements with their residents. For decades, nursing facilities could hide their malpractice and handle all claims brought against them behind closed doors by forcing residents to sign away their legal rights in arbitration agreements. For residents who experienced neglect, assault, or death due to a facility’s failures, their families were denied access to the Court system because these agreements waived the rights of residents to a jury trial awarded to them by the Constitution. Instead, claims were decided in a process presided over by an arbitrator often of the nursing home’s choosing, and many times pursuant to the nursing home’s rules. When things went horribly wrong due to their malpractice, nursing homes were able to contain their costs in these arbitration proceedings in which discovery was a less than searching process and awards for damages to the residents would often be low.
The Obama administration banned forced arbitration by nursing homes in 2016. However, the Medicare and Medicaid Division recently stripped these rights from residents by overturning the 2016 ban. The Federal government will once again allow nursing facilities to use these agreements, but there are some limitations. One limitation is that the resident is allowed a 30-day period to rescind an arbitration agreement after signing. This presumes that the resident understood or knew they were executing such an agreement upon admission and appreciated its consequences.
During the emotional rollercoaster of choosing and admitting a loved one to a nursing home, unsuspecting families can easily overlook the arbitration agreement in the pile of documents given to them by the facility to sign. Often such a pile can understandably be mistaken for financial paperwork that would be necessary to sign for the medical services to be provided. The concern of residents and their family upon admission to a nursing home is the health and care of the resident, not their legal rights. Certainly, the consideration, review and signing of complex legal documents is not something they expect to be confronted by at the time of admission to a nursing home.