Beware Nursing Home Arbitration Clauses!

Nursing homes and assisted living facilities in Virginia and across the country are turning to arbitration agreements to keep their neglect and abuse from being scrutinized publicly in a court of law.  These provisions are frequently snuck into a mound of admissions paperwork that families are required to sign when placing a loved one in a long term care facility or forced upon families who have nowhere else to turn as a condition of admitting their loved one into the facility.  

For excellent news coverage about nursing home arbitration agreements, I include below the full text of a recent article entitled "Elderly Want Right to Sue Homes Over Care: Arbitration Agreements in Nursing Homes" from the June 21, 2008 edition of the Fredricksburg Free Lance-Star:

"Elderly people seeking admission to nursing homes might be signing away their right to sue over poor treatment.

A growing number of nursing homes in Virginia, and across the nation, require potential residents to agree to resolve disputes through arbitration and not lawsuits.

"These agreements mean that the door is closed to them to use the court system in the event of poor care," said Joani Latimer, the ombudsman for the Virginia Association of Area Agencies on Aging.

Elderly-care advocates in the Fredericksburg area are keeping an eye on the situation. So far, the agreements have not become a problem for nursing-home patients here or their families.

Valerie Hopson-Bell, the case manager for ElderCare Connection, has not heard of a local case in which arbitration has been forced on a nursing-home client. She served as an ombudsman for the Rappahannock Area Agency on Aging from 1999 until last year. She has now started a private company to assist elderly residents and their families.

"It has been brought up at ombudsman meetings in the state," Hopson-Bell said of the arbitration issue.

Some Fredericksburg-area nursing homes have arbitration agreements in their con-tracts.

"It is part of our admission agreement," said John Sevier, the administrator of Mary Washington Health Center in Colonial Beach.

However, no legal action has been taken by a resident or family member during the five years Sevier has been there.

Heritage Hall Health Care in King George County also has a binding mediation agreement. The only way a resident can sue the nursing home is to leave the facility and file the suit within 60 days.

"If they have a problem with us, they can choose option one, which is mediation, or they can terminate all health care service," said Jim Haines, corporate attorney for Heritage Hall. "It's a pretty standard contract. Other major providers have the same provision."

Efforts to reach other nursing homes in the area were not successful.

Congress is looking into the issue.

Sen. Mel Martinez, R-Fla., is sponsoring legislation that would ban binding arbitration agreements in admission contracts.

A hearing was held this week on the Fairness in Nursing Home Arbitration Act. The bill is now before the Senate Judiciary Committee.

"We have a wide base of support for this bill, including the AARP," said Ken Lundberg, a spokesman for Martinez. "We see it as a common-sense solution to what has become a widespread problem."

Advocates for the elderly say arbitration can be a useful tool to resolve disagreements. It is fast, private and cheaper than a court case.

The Senate bill would not ban arbitration in nursing-home disputes, but it would keep it from being a requirement for admission to a home.

"It creates a situation where families are making urgent decisions [about care] and are having to sign agreements in a rushed and emotional time," Latimer said. "They are not aware that arbitration agreements are in there or the full implication of it."

Latimer also said that agreements of this sort keep problems in elderly care out of the public eye.

"It's a closed process," Latimer said. "Problems with care don't see the light of day."

The arbitration process involves having a nursing-home-appointed arbitrator hear both sides of the complaint and then make a decision based on federal, state and county laws.

The ground rules for the process may differ. Often, there is no way to appeal the decision." 

I felt duty-bound to comment with additional insights about nursing home arbitration provisions, including their moral cost.  My thoughts, which appeared in the July 16, 2008 edition of the Fredricksburg Free Lance-Star as an editorial piece entitled "Beware Nursing Home Arbitration Requirement", were as follows:

"Nursing home corporations are using arbitration to prevent judges and juries from evaluating nursing home abuse and neglect.

A Free Lance-Star article ["Elderly want right to sue homes over care," June 21] addresses the troubling practice by nursing homes of requiring patients and their families to sign arbitration provisions that prevent the victims of abuse and neglect from turning to judges and juries for help.

Arbitration provisions force victims to surrender their disputes to an arbitrator, who, many times, is hand-picked by the nursing home, actively represents the health care industry, hears evidence privately, and makes binding decisions about victims' rights.

Nursing homes declare that arbitration is less expensive than resolving disputes in courts of law. However, arbitration provisions often force patients and their families to pay arbitration fees up front, limit access to nursing home documents and witnesses, and limit the types and amounts of damages that can be recovered.

Arbitration is less expensive only for nursing homes.

Victims of nursing home abuse and neglect have a right to hold nursing home corporations fully and publicly accountable in courts of law.

If we allow that right to be stripped from them, we make value judgments no less culpable than those that resulted in the abuse and neglect--that the elderly, the abused, the neglected are somehow less entitled, less important, and less deserving.

If every life is worth living, if there is dignity and sanctity in all life, if every person is special, and if courts of law exist to protect us all, especially those who are least able to protect themselves, nursing home arbitration provisions should not be tolerated.

If nursing home corporations would place as great a premium on providing good care, arbitration provisions would be as unnecessary as they are immoral.

Robert W. Carter Jr.

Appomattox

The writer is an attorney whose practice is devoted to protecting the rights of patients and their families."

Nursing homes and assisted living facilities have for years used arbitration provisions to escape full justice for the untold suffering they have caused from pressure ulcers (bed sores, pressure sores, decubitus ulcers), broken bones and fractures from falls, medication errors, malnutrition and sudden weight loss, dehydration, wandering and elopement, and patient-on-patient assaults.  I'm afraid the true cost to society of nursing home arbitration provisions -- i.e. the effect they have had deterring families and their loved ones from seeking justice in the first place -- will never truly be known. 
_____________________________________________________________________
Robert W. Carter, Jr. is a Virginia attorney whose law practice is dedicated to protecting the rights of the victims of nursing home and assisted living neglect and abuse in Richmond, Roanoke, Norfolk, Lynchburg, Danville, Charlottesville, and across Virginia.     

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