PRE-DISPUTE NURSING HOME ARBITRATION CLAUSES

Proposed Rule Could Undermine Last Remaining Defense for Individuals Seeking Re-Establishment of Constitutional Right to Trial

Washington, DC — An NPR article published in October, “Suing a Nursing Home Could Get Easier Under Proposed Rules” by Ina Jaffe, brings to light the issue of elder abuse in long-term care facilities and how pre-dispute arbitration agreements protect these facilities from being sued in case something goes awry while a patient is in their care. In response to the Center for Medicare and Medicaid Services’ (CMS) proposal to allow for pre-dispute arbitration as long as certain conditions were met, the National Academy of Elder Law Attorneys (NAELA) sent a letter to the agency urging them to ban these provisions and any other waivers of the right to trial before a dispute has arisen in long-term care facility agreements.

At present, the only means to defend against these provisions after a dispute has arisen has been the unconscionability of the contract provision. By blessing the use of these provisions, CMS would be undermining the only means left for these patients to regain their constitutional right to trial. “Elder abuse is unfortunately an endemic issue in America, whether it occurs at home by a family member or at a long-term care facility. Sadly, pre-dispute arbitration provisions have been used to keep wrongdoing at facilities out of the public record and have prevented many vulnerable seniors from seeing the justice they deserve,” said NAELA President Shirley B. Whitenack, Esq., CAP.