By: Basch & Keegan
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A Big Win for The Rights of the Elderly & Their Families
On Wednesday, September 28, 2016, an agency within the Department of Health and Human Services issued a rule that prohibits any nursing home that receives federal funding from requiring that its residents resolve any disputes in arbitration, instead of in court, according to a recent New York Times article. This rule, as issued by the Centers for Medicare & Medicaid, will greatly improve patient safety at nursing homes and restore the rights of nursing residents and their families.
What is Arbitration?
Arbitration is a process where parties can resolve disputes before a neutral third party without the option of a formal lawsuit.
While arbitration can be an effective form of alternative dispute resolution, we believe parties should voluntarily agree to arbitrate their dispute. We stand against forced arbitration such as what was occurring in nursing home contracts. This new rule means that in a case of elder abuse, sexual harassment and even wrongful death, nursing homes that receive federal funding can no longer force the abused party to settle, instead of bringing the matter to court.
Why Is This New Ruling Beneficial to The Elderly?
This rule provides new protections for nearly 1.5 million nursing home residents, as well as restores their fundamental right: their day in court.
When a system bars victims and their families from bringing a matter to court, they are denied the chance to bring their sufferings to light and they are denied their fundamental right to a jury trial.
A case involving a 100-year-old woman who was found murdered in her nursing home (strangled by her roommate) was initially blocked from court. When a case of such tragedy cannot be brought to court, the families of those abused or neglected are forced to choose between forfeiting their legal rights or forfeiting medical care.
What’s the Harm in Arbitration, Anyway?
Most of the time, elderly patients are unaware of the mandatory arbitration provisions imposed on them when they are admitted into nursing homes. For the elderly, this transition may represent one of the most difficult moments in their life. Children of the elderly also experience a tremendous amount of stress when moving their parents or loved ones into a nursing home. These difficult circumstances put the nursing home administrators in a superior negotiating position.
Some nursing home cases are particularly complex, such as medical malpractice and negligence claims, and require the formalities of the judicial system, not arbitration. Usually, arbitration agreements could be applied to small disputes over billing, not ones of death or serious injury. There have also been ongoing concerns that arbitration hides patterns of nursing home neglect and wrongdoing from the public. Unlike court cases, there is no way for the public to access private arbitration results.
With this new ruling, cases of nursing home abuse and neglect will not be blocked from court, and therefore no more cases of wrong doing will be hidden from the public light.
The rule is scheduled to go into effect by November 2016.
What Do I Do in the Meantime?
Between now and November, if you are looking to place your elderly family member in a nursing home, we highly recommend that you limit the authority granted to nursing homes in power-of-attorney forms. If any attorney is not authorized to sign a nursing home arbitration agreement, the nursing home cannot force them to do so. Although this may result in denial of admission into the nursing home, it will protect the overall rights of your family member in the long-run.
If you suspect that an elder has been seriously neglected or abused in their nursing home, call us right away. We’re here to help.