Banning Forced Arbitration Provisions in Nursing Home Contracts – Action Needed Aug. 1 2016

As I think many of you know, a good deal of my injury law practice involves representing victims of nursing home neglect and abuse. In this post, I’m asking you to prioritize just a few seconds in making a very time-senstive, important statement now to the federal government, on the subject of nursing homes across the United States. Believe me, the issue at stake here is anything but “unimportant” or “boring” -especially if a loved one or you needs to go into a nursing home. So I’ll try to make this quick, easy to understand, and importantly – easy to have your voice heard on.

The problem: Whenever anyone enters a nursing home for the first time, almost all nursing homes require the patient or family member to sign what is called a “Pre-Dispute Arbitration Clause.”

What these clauses say and do: They force the patient or family member to agree in advance that any problem or dispute concerning the care of the patient, will be decided by private arbitration, and not by the court system. Most of these types of claims involve patient neglect or abuse that often involves horrific harm, broken limbs, medication errors, dehydration, body ulcers, and untreated pain.

Why is forced arbitration a bad thing? For basically two reasons:

1) When admitting a loved one to a nursing home, new patients and their families don’t have the necessary information to make a decision about signing these very important legal clauses. Obviously, how could anyone possibly make such a decision, before a dispute even arises? In essence, non-lawyers are being asked to make legal critical decisions about signing away their loved one’s legal rights to the court system, prematurely. For God’s sake, putting a loved one in a nursing home is awful and confusing enough without being asked to sign away the critical right to sue if your loved one is neglected or hurt.

2) Forced private arbitration is a rigged game – and it doesn’t favor the nursing home patient. It’s essentially a private gag order, effectively stuffed down your or your loved one’s throat, assuring that a jury will never hear the facts about the harm that was done to the patient. You see, increasingly now, the nursing home industry (and it is an industry) is undergoing massive consolidation, resulting in huge corporations buying up individual nursing homes across the country, which in turn results in them owning chains of nursing homes in many states. Regardless of what the names of these individual nursing homes might be locally, they are increasingly part of massive corporate ownership. These multi-state corporations see lots of money to be made as the elderly population in the U.S. explodes, as the number of Alzheimer’s Disease victims grows exponentially each year, and as people continue to live longer than before due to other advances in medicine, such as cardiology.

Corporations love forced arbitration, because it overwhelmingly favors them over consumers and patients, and shields those corporations from legal liability. Because such arbitration contracts cut out the traditional court system, it also slashes these corporations’ legal costs. In the process, forced arbitration contracts deny justice to the weakest among us: Patients and their families who find they have no legal recourse to turn to, when wronged. They assure that a jury of your peers will never hear what really happened to your loved one.

Why is the federal government involved here, and why do you need me to make my voice heard to them? Medicare and Medicaid are government programs that pay many nursing home bills. The federal government agency that oversees these nursing home payments, which is called the Centers for Medicare and Medicaid Services, is right now considering changes to the rule that allows nursing homes to use these forced arbitration clauses. This agency is asking for the public’s input on this important issue — that’s you and me. The nursing home industry is now flexing its political, financial and lobbying muscle to keep the regulations the way they are – allowing nursing homes to require predispute arbitration clauses in their contracts. If regulators do not hear enough opposition from consumers on this issue, they’ll continue to allow nursing homes to use these arbitration clauses – and nursing home patients everywhere in Massachusetts and across the country will suffer for it.

DON’T LET THE NURSING HOME INDUSTRY TAKE AWAY PATIENTS’ LEGAL RIGHTS TO THE COURT SYSTEM. SPEAK UP – IT’S EASY. The national advocacy group representing nursing home patients on this issue, the National Consumer Voice for Quality Long-Term Care, has put together a pre-written letter to the Centers for Medicare and Medicaid, which clearly explains why these contracts should be banned – and all you have to do is click here to enter your email address as someone who opposes these arbitration contracts. Just look for the section on that page that says “For individual sign-ons, click here.” That’s all you have to do: Nothing more – it’s simple and easy. Please make your voice heard on this extremely important issue – whether or not you now have a loved one in a nursing home, or think you may have to make that decision in the near future. Because even if you never have to make that decision for someone else, you may have to make it for yourself some day.

As a Massachusetts nursing home neglect lawyer, I see more cases of nursing home patient neglect and abuse than most people would believe.  The system of adjudicating nursing home neglect & abuse cases must retain the court system, or I can assure you that nursing home patients will suufer.

Click here to tell the Center for Medicare and Medicaid Services (CMS) that you support banning pre-dispute arbitration in their final nursing home regulations – it’s easy. And remember – even though the original comment deadline was Friday July 29 by 5:00 PM EDT – it has been extended to Monday August 1 at 5:00 PM– so please, if you see this post before August 1st at 5:00 PM EDT, please click here. You’ll be taken to a page that tells you more about the issue. Look for the section on the page that says “For individual sign-ons, click here .” Click there, enter your email address, and hit the “submit” button at the bottom of the electronic letter that you will see. Your support for banning these arbitration contracts will get straight through to the regulators weighing this proposal, and will make a difference.

Thank you for speaking up for nursing home patients and their families.