New Federal Rule Bans Binding Arbitration Clauses For Nursing Homes

Madeleine Jones
September 6, 2016

A new rule by the Centers for Medicare & Medicaid Services that bans mandatory arbitration clauses in nursing home contracts of nursing homes that receive funding through Medicaid or Medicare helps to preserve the rights of nursing home abuse victims to sue. The rule will go into effect on Nov. 28, 2016, and it will apply to nearly all Las Vegas and Nevada nursing homes since most accept funding from Medicare and Medicaid for their residents. Most nursing homes have required residents and their families to sign mandatory arbitration agreements before the homes would accept the residents, which is especially problematic when disputes involve abuse or neglect.

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infographic_New Rule Bans Binding Arbitration Clauses For Nursing Homes

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How Mandatory Arbitration Clauses Work

Mandatory arbitration clauses are provisions in some contracts that mandate that the contracting parties must go through arbitration to settle any disputes that might arise. The inclusion of these clauses in nursing home contracts has involved people waiving their rights to pursue legal claims against the homes in court. Disputes are heard by private arbitrators who take evidence and issue rulings.

Why Mandatory Arbitration Clauses Are Bad

Mandatory arbitration clauses are bad for nursing home abuse victims for several reasons. Often, the arbitration firm that will hear the case is one that the nursing home has used previously. In some cases, the arbitration firm will be named in the contract’s arbitration clause. This means that the arbitration firm has likely built a relationship with the nursing home, leading to a risk of institutional bias. Decisions made by arbitrators are also considered to be final decisions, meaning that people are unable to appeal them even if the decisions or rulings are wrong. Cases resolved through arbitration also do not have public records of their outcomes. This can leave people in the dark about prior allegations against the nursing homes and about information about how the cases were resolved.

Troubling Statistics

Nursing home abuse is widespread in the United States. A report by the Government Reform Committee’s Special Investigations Division that was released in July 2016 found that 30 percent of nursing homes received abuse citations between 1999 and 2001. More than 9,000 instances of abuse were reported involving 5,283 nursing homes during that two-year period. In 1,601 of the abuse cases, the harm caused to the patients was serious enough to place them at risk of immediate death or severe injury.

Nevada has had a troubling record of abuse and neglect in its nursing homes. In one study that was reported in the Las Vegas Review-Journal in Aug. 2013, every nursing home in Nevada was cited by health inspectors for having one or more deficiencies, and one out of three nursing homes in the state were cited for having deficiencies that were severe enough to cause actual harm to patients. Nevada was one of only two states in which every nursing home was found to have deficiencies. The report covered inspection reports from 2012.

Types Of Elder Abuse

In Nevada, a nursing home abuse attorney may represent people who have suffered one of four types of abuse recognized by the law. A fifth category, self-neglect, is not considered to be a crime as it involves the elderly person’s treatment of himself or herself. The remaining four include the following:

  • Abuse, including physical and mental abuse as well as depriving an elderly person of food, clothing or services that he or she needs
  • Neglect, which includes failing to provide care, treatment, food, clothing and other services when the person has a duty of care
  • Exploitation, which may include financial exploitation of elderly residents
  • Isolation, which involves preventing a resident from making or receiving calls or letters or from receiving visits

How The New Rule Might Help

Victims of nursing home abuse will be able to pursue their claims in court with the help of nursing home abuse attorneys in order to try to receive legal remedies. The court process will help eliminate the danger of institutional bias, and people are likelier to recover damages that fairly compensate them for their losses through personal injury lawsuits than through mandatory arbitration. Because court cases are matters of public record, a Las Vegas nursing home abuse attorney may also be able to find and use evidence about a home’s prior history of abuse and neglect allegations in order to demonstrate a pattern and practice of neglect and abuse. Families may also be able to research court records when they are deciding whether or not to choose a particular nursing home for the care of their loved ones.

It is unsettling that some members of one of the most vulnerable groups are abused when they are in nursing homes. The new rule will hopefully provide added protections for nursing home abuse victims by allowing them to pursue legal remedies with the help of a Las Vegas personal injury attorney in court.