No Forced Arbitration in Nursing Home Contracts


| Jim Coogan
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This is important news.  The AP and other outlets are reporting that the Department of Health & Human Services, Center for Medicare & Medicaid Services for the Federal Government has issued a new rule that will prohibit pre-dispute Arbitration clauses from Nursing Home contracts.  This means that you or your loved one will not be prohibited from filing suit in Civil Court for injuries suffered as a result of nursing home abuse and neglect.  Nursing homes are places where people with health challenges due to age and infirmity go to live and receive regular medical care.  Patients in these facilities are in a weakened state and are thus vulnerable when the care they receive does not meet their needs.  They often have difficulty expressing their concerns due to their physical or mental state and are heavily-dependent on staff for their daily needs and medical care.  This can result in malnutrition, poor hygiene, physical wasting, improper administration of medicines or therapy care, and the failure to re-position residents who have difficulty turning themselves, leading to pressure injuries.

Noting another major development in the news, a writer at the New Republic has tied this positive development for patients’ rights into the scandal coming to light from banking giant, Wells Fargo.  David Dayen has thoughtfully explained some of the important things that consumers should know about the agreements they enter into and the hidden terms of those agreements.  Sometimes, those hidden terms can be devastating in their impact.  Arbitration clauses in Nursing Home contracts prohibit residents or their families from bringing the abuse and neglect that residents suffered into court…and that can also mean that the torment does not see the light of day.  Arbitration proceedings are not public hearings or on the public record, like Court cases are.  And there is more abuse than you would think:

The prevalence of wrongdoing at nursing homes is shocking—from preventable falls to patient neglect to financial theft to even physical and sexual abuse. “I’ve seen photos of seniors in compromising positions put on social media,” Thomas says. “It’s really sad.” The New York Times wrote earlier this year about a 100-year-old woman murdered by her 97-year-old roommate, whom the facility knew was at “risk to harm herself and others.”–New Republic, David Dayen, September 28, 2016

As also noted in the New Republic’s review, according to the Inspector General for the Federal Dept. of Health & Human Services, 22% of Medicare patients suffered “adverse events” resulting from care in nursing facilities.  Think about that.  Nearly a quarter of residents.  Besides being secret, Arbitration proceedings are heard by a private lawyer.  Not a judge.  This lawyer often has ties to the Corporate Defendant.  They often hear multiple cases involving the same company.  And while one might think, ‘gee, wouldn’t they start to see a pattern?’ the reality is the opposite: it means they are regularly getting paid by the same Company to hear cases and thus have a financial motive to keep getting business from that company as an Arbitrator.

Also, we should note again that the Federal Consumer Financial Protection Bureau proposed a rule banning forced arbitration clauses in financial services contracts in May, 2016.  These changes mean that consumers are regaining access to justice.  One of our greatest gifts as an American population from the founders of our country was the Seventh Amendment, granting us the right to trial by jury to publicly seek redress for wrongs done to us.


Do you have questions about nursing home care for yourself or a loved one?  Please call our office to discuss them with one of our attorneys.

This is important news.  The AP and other outlets are reporting that the Department of Health & Human Services, Center for Medicare & Medicaid Services for the Federal Government has issued a new rule that will prohibit pre-dispute Arbitration clauses from Nursing Home contracts.  This means that you or your loved one will not be prohibited from filing suit in Civil Court for injuries suffered as a result of nursing home abuse and neglect.  Nursing homes are places where people with health challenges due to age and infirmity go to live and receive regular medical care.  Patients in these facilities are in a weakened state and are thus vulnerable when the care they receive does not meet their needs.  They often have difficulty expressing their concerns due to their physical or mental state and are heavily-dependent on staff for their daily needs and medical care.  This can result in malnutrition, poor hygiene, physical wasting, improper administration of medicines or therapy care, and the failure to re-position residents who have difficulty turning themselves, leading to pressure injuries.

Noting another major development in the news, a writer at the New Republic has tied this positive development for patients’ rights into the scandal coming to light from banking giant, Wells Fargo.  David Dayen has thoughtfully explained some of the important things that consumers should know about the agreements they enter into and the hidden terms of those agreements.  Sometimes, those hidden terms can be devastating in their impact.  Arbitration clauses in Nursing Home contracts prohibit residents or their families from bringing the abuse and neglect that residents suffered into court…and that can also mean that the torment does not see the light of day.  Arbitration proceedings are not public hearings or on the public record, like Court cases are.  And there is more abuse than you would think:

The prevalence of wrongdoing at nursing homes is shocking—from preventable falls to patient neglect to financial theft to even physical and sexual abuse. “I’ve seen photos of seniors in compromising positions put on social media,” Thomas says. “It’s really sad.” The New York Times wrote earlier this year about a 100-year-old woman murdered by her 97-year-old roommate, whom the facility knew was at “risk to harm herself and others.”–New Republic, David Dayen, September 28, 2016

As also noted in the New Republic’s review, according to the Inspector General for the Federal Dept. of Health & Human Services, 22% of Medicare patients suffered “adverse events” resulting from care in nursing facilities.  Think about that.  Nearly a quarter of residents.  Besides being secret, Arbitration proceedings are heard by a private lawyer.  Not a judge.  This lawyer often has ties to the Corporate Defendant.  They often hear multiple cases involving the same company.  And while one might think, ‘gee, wouldn’t they start to see a pattern?’ the reality is the opposite: it means they are regularly getting paid by the same Company to hear cases and thus have a financial motive to keep getting business from that company as an Arbitrator.

Also, we should note again that the Federal Consumer Financial Protection Bureau proposed a rule banning forced arbitration clauses in financial services contracts in May, 2016.  These changes mean that consumers are regaining access to justice.  One of our greatest gifts as an American population from the founders of our country was the Seventh Amendment, granting us the right to trial by jury to publicly seek redress for wrongs done to us.


Do you have questions about nursing home care for yourself or a loved one?  Please call our office to discuss them with one of our attorneys.

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      Life has many surprises, some of which are not pleasant and many time almost tragic. My 95 year-old Mother and I were involved in a very serious car accident, in which my car was totaled. We were ambulanced to the hospital in serious condition. Life also presents us with many important decisions, which could be life altering. I contacted Jim Coogan…

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