Proposed Federal Rule Would Allow Nursing Home Residents to Have Their Day in Court

When moving into a nursing home, patients are given a slew of paperwork to sign as precondition to admission.  Most patients don’t know the documents often include a mandatory arbitration clause.  By signing these documents, they’ve “agreed” to the mandatory arbitration clause.  If the resident is injured or killed by the negligence of the nursing facility or its staff, the facility will then argue that the patient and their family gave up their constitutional right to a jury trial.

Arbitration typically favors the nursing home industry over the patient.  For example, a 2009 study revealed that, if an arbitrator does find in favor of the patient, arbitrators allow money damages that are 35% less than juries for similar injuries.

The Centers for Medicare and Medicaid Services has proposed regulations requiring nursing homes to explain arbitration agreements to ensure that residents and their families understand what they’re signing.  Equally importantly, the regulation would prohibit conditioning admission on agreeing to mandatory arbitration.

We believe this does not go far enough.  More than 50 labor, legal, medical and consumer organizations want the government ban these pre-dispute arbitration agreements entirely.  Former US Congressman Henry Waxman joins 34 US senators and attorney generals from 15 states and the District of Columbia calling for a total ban of the mandatory arbitration clauses.

To learn more about this proposed rule to protect the elderly and their families, go to npr.org at http://www.npr.org/sections/health-shots/2015/10/19/449957318/suing-a-nursing-home-could-get-easier-under-proposed-federal-rules