Nursing Home Arbitration is Unfair and Apparently, Here to Stay, According to CMS

Imagine the horrific experience of having a loved one killed inside a nursing home due to abuse or neglect. You would want justice, right? Legally, your only option would be to sue the nursing home in court. Unfortunately, the Trump administration Centers for Medicare and Medicaid (CMS) has proposed a rule allowing nursing homes and ALF’s to include a mandatory arbitration agreement in long term care facility admission paperwork. If allowed, this would prevent families from holding negligent nursing homes accountable in court, and instead, force them to arbitrate their issue with industry insiders behind closed doors in a confidential proceeding. This is problematic for a number of reasons.

Forced arbitration of nursing home abuse cases takes a public concern out of the public realm, thereby allowing negligent nursing homes to conceal their wrongdoing.

Nursing Homes Need Accountability

Take a look at the below statistics on the sad state of nursing homes in the United States. The industry is already grossly under-regulated, with cash-strapped agencies unable to patrol and monitor the rapidly growing SNF and ALF industry.

By removing an aggrieved resident’s right to hold a nursing home accountable in court, care levels will inevitably drop and vulnerable residents will suffer.

Why Arbitration is Unfair in the Nursing Home Context

Arbitration is usually sold as a quicker, cheaper alternative than traditional litigation in court. Instead of a judge and jury, arbitration hearings are decided by industry insiders who are familiar with the dispute topic. Instead of a courtroom, arbitrations are typically held in private offices. Instead of the media being present in the traditional trial, arbitrations are closed door proceedings.

Arbitrations are Wonderful When There is a Business Dispute Between Two Sophisticated Corporations

In this scenario, both savvy corporations are represented by counsel and all arbitration agreements are reviewed in detail by lawyers prior to signing. Both parties understand what they are getting into and it generally behooves two represented corporations to avoid prolonged litigation in court.

Nursing Home Arbitration ‘Agreements’ are the Exact Opposite

When an elderly resident is admitted into a nursing home or assisted living facility, the process is chaotic. The resident is thrown a stack of papers and told to sign on the dotted line, or else they will not be admitted. There is no corporate attorney reviewing the agreements on behalf of the resident. Instead, the arbitration agreement is tucked into all kinds of other admission paperwork. The resident has no idea what they are signing.

Conversely, the nursing home chain has a team of lawyers that carefully crafted the arbitration agreement. The agreement serves the interests of the nursing home company at the detriment of the resident. To say that there is unequal bargaining power between a multi-million dollar corporation and a frail nursing home resident is an understatement.

Forced Arbitration Violates the 7th Amendment Right of the Nursing Home Resident

“I believe in the U.S. Constitution.” We hear this a lot from politicians, but when you dig deeper on the issue, it seems like they believe in certain portions of the U.S. Constitution. One overlooked portion of the Constitution is the 7th Amendment, which guarantees a right to a jury trial in civil disputes (i.e. nursing home wrongful death cases). The right to a civil jury trial is so important that it is included in the Bill of Rights.

Arbitration literally violates the core of this constitutionally-protected right to a civil jury trial. Arbitration takes the decision-making power out of the hands of the people and into the hands of ‘experts’ familiar with the nursing home industry. As early as 1751, the pre-state South Carolina legislature declared that “any person who shall endeavor to deprive us of so glorious a privilege of trial by jury is an enemy of the people.”

CMS should contemplate this flagrant constitutional rights violation before enacting its proposed rule. It will harm residents, remove accountability for bad actions and give a victory to negligent nursing homes.

Let’s Stop The Cycle of Nursing Home Neglect

Senior Justice is more than our law firm name. It is our mission. If you have a question on a potential elder abuse case, contact our knowledgeable and compassionate Florida nursing home abuse lawyers at Senior Justice Law Firm today at 1-844-253-8919.