If you have been following our blog on nursing home abuse, you know that retirement facilities are required to meet standards established by the federal government. These guidelines set forth provisions to ensure that nursing home staff meets physical, medical and emotional needs residents may have. While such measures have been helpful, guidelines of this type have been on the books for quite some time, and new legislation designed to further the protection of residents has been blocked in Congress.
A new law passed by an agency within the Health and Human Services Department has reinstated the right of nursing home residents and their family members to sue nursing home facilities in court. While it may seem to be a reasonable request, the right to litigate has been denied to millions of nursing home residents due to admissions contracts they signed when applying for room within the facility. Embedded in many contracts is a clause that makes admission contingent on the client’s agreement to resolve conflicts through arbitration rather than litigation.
At a time in which family members and the elderly resident may be experiencing great levels of stress, gaining admittance into a facility is often more important than examining a contract for admission. Attorneys hired by the elderly to fight the arbitration clause say that the management of the facilities leverages this stressful time to protect itself from future litigation.
Those supporting arbitration as a means of conflict resolution argue that the process is more efficient, cost effective and private than litigation. Opponents declare that arbitration favors large corporations because they will often serve as clients of the arbitrators, providing the mediators with future business. Additionally, the arbitrator’s ruling is typically final; whereas, there is a process for filing an appeal in court. Those who favor litigation say that the most frustrating aspect of arbitration is the veil of secrecy it creates. As the proceedings are confidential, no evidence or testimony is documented with a court. Such secrecy benefits corporations that are fearful of public recrimination with a revelation of a pattern of criminal behavior.
The new legislation impacts any retirement home that receives federal funds though Medicare or Medicaid. When goes into effect in November 2016, the law will address new claims and not impact cases already arbitrated.