Corporations love arbitration agreements. Whether it’s a cell phone contract or an employment agreement, compelling people to give up their right to take any future disputes to court is advantageous to these firms.
But as our nursing home abuse attorneys have come to know, people often don’t realize what they’re signing. Arbitration agreements tend to be buried in a mountain of paperwork. This is especially true in cases where nursing homes require new residents/ representatives to sign such paperwork upon admission.
Although the U.S. Supreme Court upheld the validity of nursing home arbitration agreements in the May 2017 case of Kindred Nursing Centers v. Clark, an Obama-era final rule via the Centers for Medicaid Services (CMS) prohibited nursing homes that accepted Medicaid (almost all of them) from forcing residents to sign one.
That is now changing with new directives from the Trump administration, much to the sharp consternation of elder care advocates.
As the advocates and nursing home abuse lawyers note, binding arbitration agreements strip residents and their loved ones of access to the courts – a constitutional right – in the event they or their loved one are victimized. Instead, they are compelled to participate in the arbitration process. Several downsides exist to this, including (as noted by the National Consumer Voice for Long-Term Quality Care):
- Arbitration agreements are generally offered as a “take-it-or-leave-it” proposition. The “leave it” means finding another provider. Perhaps this isn’t such a big deal when we’re talking about cell phone carriers, but long-term care providers are another story, and new residents – already under enormous stress or illness – may not have other options.
- Residents and families must often help pay the arbitrator’s fee, which would be like paying a judge, which consumers don’t have to do.
- Arbitration can be very costly for plaintiffs, which is often a deterrent to bringing the dispute in the first place.
- The amount awarded to nursing home abuse victims in arbitration is consistently far less than what they would receive in a court of law.
- Consumers cannot usually appeal the arbitration decision.
- Arbitration awards are often private, meaning the public doesn’t get to learn about poor or abusive practices by problem nursing homes. That means future residents and families don’t get the benefit of knowing which facilities have a history of nursing home neglect and abuse.
All of this is a huge part of why 17 state attorneys general and dozens of members of the Senate are pressing the current administration not move forward with the proposed rule.
The new rule would still require facilities to explain contracts to new residents and/ or representatives, and the agreements can’t contain any language that would discourage anyone from contacting the appropriate law enforcement or other authorities. There is also a provision that states such agreements should contain plain language, as opposed to legal jargon that makes it near impossible to sign. These provisions are a good start, but if new residents still don’t have a choice of whether to sign, it does little good.
As our West Palm Beach nursing home abuse lawyers can explain, arbitration agreements are to the benefit of almost no one but the would-be defendant facility. There may be some instances wherein a signed arbitration agreement could be deemed unconscionable and unenforceable as a violation of public policy, as we saw with the 2011 Florida Supreme Court ruling in Gessa v. Manor Care of Florida Inc.
If you have a loved one who has suffered injury or serious illness as a result of improper care at a nursing home in West Palm Beach, we can help.
Contact the personal injury attorneys at Halberg & Fogg PLLC., Attorneys at Law, by calling toll-free at 1-877-425-2374. Serving West Palm Beach, Miami, Tampa, Orlando and Fort Myers/ Naples. There is no fee unless you win.
Trump Moves to Impede Consumer Lawsuits Against Nursing Homes, Aug. 18, 2017, By Robert Pear, The New York Times