COVID-19 Update: How We Are Serving and Protecting Our Clients

Articles Posted in Arbitration

Several weeks ago, nursing home residents across the country won a big victory when the U.S. Department of Health and Human Services (HHS) announced that it will be instituting a ban on pre-dispute arbitration agreements in nursing homes that accept government funding.

These agreements have long been used by nursing homes to deny the constitutional right of a trial by jury to nursing home residents who have suffered abuse and neglect.  Even if residents are severely injured or die as a result of a nursing home’s negligent care, these agreements protect nursing homes from having to go into court and defend their actions.  HHS actually acknowledged that these agreements allow nursing homes to keep their abuse and neglect hidden from the public eye.

To get nursing home residents and their families to sign these agreements, nursing homes typically include them in their admission paperwork, sometimes even requiring them for admission.  HHS pointed to the unequal bargaining power that exists when these agreements are given to residents or their families.

Early in the history of this nation, disputes were often resolved in barbaric fashion.  An individual might challenge someone who had grieved him to a duel which could occasionally result in injury or death. In 1804, the Vice President of the United States killed Founding Father Alexander Hamilton in one of these duels after accusing him of slander. But when the Founders drafted the Constitution, they incorporated an essential doctrine of law that would provide a more civilized and fair way of settling such complaints. That method was the jury trial, and every Americans’ right to a trial is enshrined in the Seventh Amendment of United States Constitution. But today that right is being threatened by manipulative practices of corporations who want to play by different rules.

Arbitration agreements are everywhere. You can find them in credit card agreements, insurance policies, or those dreaded privacy policies that pop up when you install software. But one place you may not expect to see them is in admissions paperwork for a nursing home or assisted living facility. These documents typically take the form of a several pages but may be as small as a clause or line in a contract. No matter their size, they can have a profound impact on your ability to seek legal recourse when you have been wronged.

Corporations tend to favor arbitration because it essentially allows them to opt out of the legal system. When they are negligent and cause injury or death, they are not required to answer to a judge or jury in a courtroom. Instead, they are allowed to make their case in front of an arbitrator who often provides results which are much friendlier to corporate parties.

In July, the Centers for Medicare and Medicaid Services (CMS) proposed rule changes that would improve the quality of life, care, and services in nursing home facilities that receive funding from Medicare and Medicaid. In an effort to protect residents and keep them safe, the Department of Health and Human Services is aiming to impose rules to protect seniors from abuse, mistreatment, neglect, and fraud. Over the next couple of weeks, the Jehl Law Group will be diving into some of the specifics of the possible rule changes so that you can be more informed as you consider moving your loved ones into a nursing home.

Let’s start by addressing the proposed rule changes regarding arbitration agreements (also known as alternative dispute resolution agreements). In the simplest terms, these agreements state that residents give up their right to a jury trial even if they are injured or die due to the nursing home’s negligent care. Oftentimes, nursing homes put these agreements in their admission paperwork, and residents or their representatives simply sign them without realizing that they are giving up their right to sue in court. The proposed changes try to address this issue by requiring nursing homes to explain what an arbitration agreement is “in a form and manner…that the resident understands.” They also state that the agreement “should not be contained within any other agreement or paperwork.”

In some states (including Tennessee), nursing home facilities go beyond hiding these agreements in admission paperwork, and they actually require that residents sign these agreements in order to gain admission. Nursing homes are allowed to take advantage of people who might not have any other options when a loved one is in need of immediate care by saying sign the agreement that takes away your right to sue or find another facility. The proposed changes also explicitly address this issue: “Admission to the facility must not be contingent upon the resident or the resident representative signing a binding arbitration agreement.” Essentially, if the proposed rule changes go into effect, nursing homes will no longer be allowed to force you into signing an arbitration agreement; instead it must “be entered into by the resident voluntarily.”

to-sign-a-contract-3-1221952-mMost nursing homes in Tennessee and surrounding states now include arbitration agreements (also known as ADR or alternative dispute resolution agreements) as part of the paperwork presented when a resident is admitted to a nursing home.  So, when a resident is admitted to a nursing home, typically a representative from the nursing home will ask the resident or his or her family member to waive the resident’s constitutional right to a jury trial, should the resident be injured or die due to the nursing home’s negligent care.  What this means is before the resident suffers an injury at the nursing home, the nursing home has already gotten the resident to sign away his or her right to sue the nursing home.  While Federal and Tennessee law require that nursing homes protect the rights of their residents, exactly the opposite occurs most times when someone is admitted to a nursing home.  As a result, residents may suffer injuries such as bed sores, sexual assault, weight loss, infections, dehydration, or even broken bones and not be able to sue in a court of law.
Continue reading

TTLA Member 2020-2021
TTLA Member 2020-2021 Executive Commitee
TAJ 2013-2014
TAJ 2014-2015
TTLA Member 2016-2017
TTLA Circle of Advocate
Contact Information