Big Nursing Home Corporations Want to Stack the Deck Against Wrongfully-Injured Residents. The Fairness in Nursing Home Arbitration Act would help change that.
The Problem: Nursing home corporations routinely force new residents to agree to forced arbitration before they will admit a new resident. Forced arbitration agreements make it so that even clearly-abused elderly residents cannot go to court to get justice - no matter how severe the abuse or neglect. It is blatantly unfair and un-American to stack the deck in this way. We have our justice system for a reason, and huge nursing home corporations should never be allowed to take away the protections we enjoy as citizens.
Think about it. Patients (or their loved ones) are reading admission papers during one of the most stressful times in their lives. Very often a medical emergency has just been suffered, or the elderly loved one is suffering from dementia. A lot of residents just aren't capable of understanding what they are signing, too. Families are also under tremendous stress - wondering if they are making the right decision for their loved one.
The forced arbitration clauses are often hidden inside pages and paragraphs of legal jargon. They are not easily spotted. Even if they are, the elderly residents and their families are often told they either have to sign the document or find somewhere else to stay. Sign it, or leave.
Unfortunately in most communities, finding somewhere else to stay is next to impossible due to overcrowding. Many rural communities only have one nursing home.
Forced arbitration "agreements" are wrong. They allow the nursing home corporation to force arbitration even in the most severe cases including, broken and severed limbs, suffocation on bedrails and restraints, sexual assault, dehydration, malnutrition and septic bedsores that caused a death. The nursing home corporation’s wrongful conduct will never be made public nor can they be brought before a jury, with forced arbitration.
Forced arbitration clauses frequently even allow the nursing home corporation to pick their own arbitrator with no input from the injured. The nursing home corporation will typically choose an arbitrator who has sided with the nursing home in the past. This leads to arbitrators who tend to side with the corporation in the hope that they will be picked again for the next arbitration. Arbitrators are not bound by laws or rules of evidence and are not required to even explain their verdict.
The Legislation: On March 3, 2009, some members of Congress introduced amendments to Title 9 of the United States Code which would be known as the Fairness in Nursing Home Act. (S. 512/H.R. 1237) The proposed amendment will first go to a committee who will deliberate, investigate, and revise the act before it goes to general debate and then will be voted on by the Senate and the House. The amendments will provide that a pre-dispute arbitration agreement between a long-term care facility and a resident (or anyone acting on the resident's behalf) shall not be valid or specifically enforceable.
Pre-Dispute Arbitration Agreements will be Invalid under the Fairness in Nursing Home Arbitration Act. The Act will not specifically prohibit arbitration but will give the patient and their family a choice to choose between an impartial arbitration process, only after a dispute arises or take the matter to a jury.
What Can You Do About This? To help push The Fairness in Nursing Home Arbitration Act through Congress and to recover your rights and your loved one's rights, we urge you to contact your Member of Congress and both of your Senators and ask them to vote in favor of the Act.
For more information, or for answers to questions about abuse or neglect inside a South Carolina nursing home, contact elder law attorney Michael Jeffcoat at 1-800-827-7898.
