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Removing arbitration clauses from nursing home agreements

On Behalf of | Oct 11, 2016 | Guardianships & Conservatorships |

At some point an aging relative may need more care. Often stubborn elders who have lived on their own for years can hide problems for awhile. It might be a neighbor who reports concerns or loss of money through a tax scam that really brings home the situation.

While an assisted living residence may provide enough care, other circumstances such as memory loss or mobility issues require skilled nursing care. How do you choose the right nursing home? A local elder law attorney can assist in the process of finding the right placement during a difficult time. A new rule returns a right to nursing residents and their families by removing a clause in the fine print of admission agreements.

The affect of an arbitration clause

Arbitration clauses have quietly been inserted into the fine print of most contracts that we sign. With nursing home admissions, most families are more worried about waiting lists and obtaining a room. They only learn of the arbitration clause if something goes wrong.

The U.S. Supreme Court has made it nearly impossible to overturn arbitration clauses. Even illiteracy was ruled insufficient to invalidate an arbitration agreement by an appeals court.

Arbitration keeps cases from going to court. These private settlements keep patterns of bad conduct out of the public eye. These clauses have reduced the legal costs for the nursing home industry. But they have prevented some families from obtaining justice.

The New York Times reported on a case where the California’s department of public health found a facility “failed to protect” a woman with Alzheimer’s from sexual assault. When the family sought to hold the nursing home accountable they were blocked from the courthouse by an arbitration clause.

Rule change remedies the situation

The federal agency that controls Medicare and Medicaid funding has found a solution. In November, it will implement a rule that cuts off federal funds to any nursing home that requires arbitration of disputes. This should allow those victimized by elder abuse, sexual harassment or neglect to have their day in court.