If you or your loved one experiences mistreatment or abuse in a nursing home, you may want to file a lawsuit. Even with clear evidence of abuse or neglect, you may not be able to file suit because of a mandatory arbitration agreement.
Fighting nursing home abuse is already hard and arbitration agreements make it more difficult for abused people to get justice. We will cover how mandatory arbitration agreements can prevent nursing home lawsuits and upcoming changes to the law.
What are mandatory nursing home arbitration clauses?
Some nursing homes make residents sign an arbitration agreement before they can move in. This compulsory agreement waives a person’s right to file a lawsuit and requires both parties to go to arbitration if there is a dispute.
Arbitration is an out of courtroom process where both parties present their evidence and arguments to an arbitrator. This arbitrator will then make a decision about the outcome of the case and possible compensation. Some of the claimed benefits of arbitration are that it is faster and cheaper to resolve a dispute when compared to a lawsuit.
In practice, mandatory arbitration agreements can make an abused resident pay for legal fees and the cost of the arbitrator. The abused resident may also have fewer options to pursue payment in arbitration and may not be able to appeal an arbitrator’s decision. These agreements also allow nursing homes to hide mistakes because they are not part of the public record.
What is changing about arbitration agreements?
In 2016, the Centers for Medicare and Medicaid Services (CMS) created new rules that prohibited nursing homes from requiring residents to sign arbitration agreements. In late 2016, a federal judge blocked these regulations from taking effect. The CMS has now stated that they plan to remove the arbitration agreement rules and they have outlined some new requirements for these agreements.
The CMS now requires that arbitration agreements:
- Be written in plain language
- Be explained clearly to the resident in their native language
- Not have language that prohibits a resident from contacting government inspectors
- Be open to CMS review
- Be included in the admission contract, if mandatory
Even with these proposed changes, arbitration agreements can still prevent residents from receiving fair payment for abuse. If you are searching for a nursing home or have an abuse claim, have a knowledgeable attorney review the arbitration agreement. If the arbitration agreement is extremely restrictive, that may be a red flag that abuse happens at the nursing home.