Right to a day in court for nursing home residents

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The decision to move a loved one to a skilled nursing facility is never an easy one. After doing the research to identify the best possible option, you probably didn’t read all the fine print when signing an admissions agreement.

Did you realize the lengthy document contained an arbitration clause? Why could this pose a problem? If you discover pressure sores on a visit or hear stories from an elderly parent indicating neglect, you might not be able to take the matter to court. But a decision by the Department of Health and Human Services changes the situation and will restore rights to nursing home residents and their families. In this post, we’ll explain this significant change: the first in two decades.

Opening back up the courthouse doors

The new rule will cut off federal funds to any nursing home that forces residents to resolve disputes through arbitration. The New York Times reports the change will protect some 1.5 million nursing home residents across the country. The rule is scheduled to go into effect by November.

Arbitration clauses have made a slow creep into almost every contract we sign from cellular phone agreements to employment contracts. The U.S. Supreme Court has issued decisions supporting their widespread use. This has made it near impossible to have a judge hear a case whether it relates to fraud or even the murder of a resident (as the New York Times reported on last November).

The nursing home industry opposed the change. Arbitration saved them significant legal fees. Some estimates put the industry savings at approximately 35 percent.

Victims and their families did not have the right to appeal from an arbitrator’s decision. And legal fees are generally split between both parties.

Keeping issues out of the public eye

These hearings frequently happen in the offices of lawyers who represent the nursing home. The private nature of arbitration also has kept patterns of wrongdoing hidden.

We applaud this change of course. A family trying to hold a nursing facility to account for issues of neglect, assault or fraud should never be denied access to court by an arbitration clause.

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