Many nursing homes ask residents to waive legal rights as part of the admissions process. This is wrong and should be prohibited nationwide.
The Centers for Medicare and Medicaid Services (CMS) initially presented a proposal to prohibit binding arbitration agreements by nursing homes. But, under pressure from the nursing home industry, CMS has offered up a proposal that, frankly, creates gray areas open for interpretation in all 50 states. Color me practical, but I believe a black and white solution is plainly evident: prohibit binding arbitration agreements by nursing homes altogether.
Resolve Conflicts in Open Court
These days, many nursing homes either require, or present as a “voluntary” option, a signed agreement prior to admission that residents waive their right to sue for malpractice in the event of serious injury from nursing home negligence or abuse. Instead, residents must agree that such claims be submitted to binding arbitration – a procedure conducted in private with limited resident or family access to documents and no appeal. Residents or their families also are expected to pay half the costs, which can run into the thousands of dollars.
Contrast this with resolving the allegations in open court, with both sides having access to all the evidence, and the ability to appeal.
Families Often Placed in a Bind to Accept Arbitration
So why would any family or patient sign a binding arbitration agreement? Because they are not presented with a genuine alternative that protects and preserves their legal right to sue. The only alternative they have now is to find a different facility. And there’s no guarantee that a new facility won’t require binding arbitration as well.
Intimidation and expediency may also be factors. If a patient or family thinks that not signing the agreement will result in non-admission, or bump them down the “waiting list,” they will sign. If the patient or family is facing an emergency situation and needs a nursing home bed now, they will sign. If the agreement is slipped into the stack of admission forms that most people don’t read or understand, they will sign.
Current Government Proposal Open to Interpretation
Court challenges to this practice in different states have led to a hodge-podge of laws. Now, the Center for Medicare and Medicaid Services (CMS), which regulates nursing homes that accept federal money, has proposed a national rule requiring that:
- The signing of all arbitration agreements should be voluntary.
- The agreements be presented “in a form, manner and language” that a resident understands.
- That the health care provider makes sure the resident acknowledges “that he or she understands the agreement.”
Sounds good, right? But, the proposal doesn’t address either intimidation or expedience. What if the resident or family, in full knowledge of what they are being asked to do, signs anyway because they are afraid to say “no?” How does one tell if the resident – elderly, frail, frightened, perhaps suffering from dementia or Alzheimer’s – truly understands what he or she is signing, and his or her options?
Simple is Better
As a nursing home lawyer, I see the solution as pretty simple: Prohibit arbitration agreements entirely.
To allow nursing homes to present even “voluntary” binding arbitration agreements is to put residents and their families in a lose-lose position. Why would the government even consider for a moment eroding an injured citizen’s right to sue?
Fortunately, the CMS proposal has not been finalized. Also, Congress is looking at laws that would prohibit the agreements outright. So there’s still hope that binding arbitrations in nursing home admissions practices will be barred nationally.
Civil Justice System Protects Us All
The Civil Justice System exists to protect the rights of victims. It has worked for decades to level the playing field between victims of preventable injury, abuse, neglect or recklessness, and those responsible. It is the only way injured citizens can hold those who harmed them accountable, and receive fair compensation for their losses. Any attempt to circumvent this right should be opposed vigorously by all of us.
If a loved one has been injured in a nursing home contact a skilled personal injury attorney in Boston today for a free consultation.