In the past we have covered multiple topics on forced arbitration, the fine print wording in contracts that does not allow people their day in court. A lot of attention has been put on forced arbitration clauses in nursing home contracts. In September 2016, the Obama administration put a ban on forced arbitration to protect the elderly from unscrupulous, abusive, or merely bad care at nursing homes. The Trump administration is now beginning to pull that protection from senior citizens in assisted living homes.
The Trump administration’s revisions to what former President Obama had first implemented will prevent injured victims from getting fairly compensated for their injuries. Before entry, nursing homes routinely require patients to sign arbitration agreements. Most people who sign these contracts do not read, or understand the rights they give away. In some cases, patients will come from a hospital straight to a nursing home. According to the National Center for Health Statistics, nearly half of nursing home patients have Alzheimer’s disease or some form of dementia. Patients may not be in the right state of mind when signing these contracts. If patients are unable to comprehend resident contracts, family members can be granted power of attorney to admit their elderly loved one into a facility. However, families are vulnerable during the process while entering their elder to a nursing home. Most arbitration contract clauses are typically found in the small print, and other times can be hidden amongst 30-40 pages of contract legal jargon.
Throughout a 30 to 40 page contract, you may come across terms like, “By signing this contract, you are agreeing to have any issue of medical malpractice decided by neutral arbitration, and you are giving up your right to a jury or court trial.” Even if inspectors have documented cases of infected bed sores, medication errors, malnutrition, dehydration or sexual assault, agreeing to those terms will prevent your case from being heard in front of a jury. Instead, your case will be assigned to an arbitrator, who will decide the outcome of your cases. Many times, this arbitrator is selected by the nursing home.
The Obama administration tried to ban such agreements, it was “almost impossible for residents or their decision-makers to give fully informed voluntary consent to arbitration before a dispute has arisen.” The Trump administration is now providing guidance to The Centers for Medicare and Medicaid Services, stating that the ban on arbitration agreements imposes “unnecessary or excessive costs on providers.” Obviously, most nursing homes embrace President Trump’s position as nursing homes would prefer to have a biased arbitrator decide the case rather than a jury of our peers. Before signing anything, thoroughly read the entire contract. If your loved one is injured at a nursing home, seek legal counsel.