House Considers Eliminating Arbitration Agreements in Nursing Homes

The Boston Herald reports that many seniors entering nursing homes are unknowingly signing away their rights to sue the facilities in the event of neglectful or abusive medical care, and officials in Washington are seeking to ban what they see as a “hidden”practice.

The seniors are being urged to sign contracts that put disputes in the hands of arbitrators. Advocates say vulnerable elderly patients fail to realize they are giving up their rights to bring cases of poor treatment before a judge and jury.

The Boston Sunday Herald reported yesterday that nearly 40 percent of the state’s nursing homes performed significantly below average, according to annual inspections, and that numerous residents suffer abuse and neglect or receive poor care.

With nursing homes pressing residents to sign the arbitration agreements - often tucked away in thick and complex admission packages - lawmakers including U.S. Rep. Barney Frank(D-Newton) are weighing federal action.

Family members and residents are emotional at admission time and overwhelmed by paperwork, said the director of public policy at the National Citizens’ Coalition for Nursing Home Reform. “They may not be aware the agreement is there. They may feel they don’t have a choice but to agree,” she said.

Studies show nursing home arbitration dramatically reduces pay outs and attorney’s fees in cases where seniors have been wronged. Nursing homes began offering arbitration agreements about nine years ago to decrease high jury awards and legal fees for the nursing homes, and so far it’s working, said vice president of public affairs for the American Health Care Association. Pay outs may be lower, but families pay a lot less in legal fees with arbitration, she said.

But Frank, who supports federal legislation to ban the agreements in nursing homes, said they have no place in the elder-care facilities. He said that though arbitration can be a good way to handle disputes, it should be a choice. “You shouldn’t have to sign one in advance in these one-sided contracts,” he said.

Frank and U.S. Rep. William Delahunt (D-Quincy) are among 28 sponsors of the legislation, which was filed by California Rep. Linda Sanchez. It is pending in front of a House subcommitee. The nursing home industry has mobilized against the bill.

Senior vice president at the Massachusetts Senior Care Association, which represents about 400 nursing homes, defended the use of the agreements and said the nursing home industry has been singled out. “They are quicker, less costly and they are very attractive alternatives to expensive, time-consuming litigation,” Plumb said.

President of Massachusetts Advocates for Nursing Home Reform, said the agreements capitalize on vulnerable seniors. “They should not lose the ability to hold nursing homes accountable in the event of abuse or neglect by signing away their constitutional right to have their cases heard by a judge and jury,” she said. For more, read the story.

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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