The U.S. Government just passed a regulation to prevent nursing homes from forcing claims of elder abuse, sexual harassment and even wrongful death into the private system of justice known as arbitration.
This September a rule was issued by the Centers for Medicare and Medicaid Services, barring nursing homes that receive federal funds to require residents to resolve disputes in arbitration and not the court system.
Usually when someone enters a nursing home, a contract is signed, and in the small print no one notices, there is a requirement that should a dispute arise, the dispute will go to arbitration and not be filed in the local Court. Families face a tough balancing act: get the care they need vs. forfeit their legal rights.
Why is this a problem? The arbitration process hides patterns of nursing home wrong doing from prospective residents and their families. Here are a couple of examples:
- A 100 year old woman was murdered in a nursing home. Her roommate strangled her.
- A woman with Alzheimer’s was sexually assaulted two times in two days in a nursing home. The state regulatory agency found that the nursing home failed to protect the woman.
In both these cases the families asked the court to hold the nursing homes accountable. The court option was closed to them because of an arbitration clause. Arbitration can work fairly; however, it can also appear to be biased, for example, when it is conducted in the law office of the attorneys who represent the nursing home. The process is non-judicial and the results are confidential.
The regulation is set to go into effect in November of 2016.
This new regulation is a great step to help protect our vulnerable seniors and give them the full legal protection of the law.
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 “U.S. Just Made It a Lot Less Difficult to Sue Nursing Homes, Jessica Silver-Greenberg and Michael Corkery, The New York Times, September 28, 2016