Nursing Home Arbitration Agreements Get Deserved Scrutiny
By Zachary Mushkatel on June 9, 2017
Elderly abuse and neglect occurs in nursing homes and assisted-living facilities in Phoenix and throughout Arizona.
Many owners of these facilities, however, try to use binding pre-dispute arbitration agreements to prevent claims against them from going to court and to keep their misconduct out of the public eye.
These agreements pose a serious problem. Harmed individuals should have the right to seek relief in court. They should be able to hold negligent care providers accountable and seek just compensation for the physical, emotional and financial harm suffered.
The public also deserves to know when a nursing home abuses or neglects a resident. This information helps families to choose the right facility for their elderly loved one. Public awareness also forces facility owners to improve the standard of care that they provide to residents.
Fortunately, more people are paying attention to this serious issue.
Arizona Newspaper Shines Light on Pre-Dispute Arbitration Agreements
The Arizona Daily Star recently published a lengthy article about the use of pre-dispute arbitration agreements by nursing homes and assisted living facilities.
As the newspaper explains, facility owners typically insert arbitration clauses in their contracts. They may also include arbitration documents in “the stack of papers families are asked to sign when a loved one is placed in a facility.”
In an arbitration agreement, the resident and/or family agree in advance to settle disputes with the facility owner through arbitration instead of court. The agreement may also require the resident and/or family to keep the facts of the dispute confidential.
Unfortunately, many people fail to pay attention to what they are signing. They may also lack an understanding of what the arbitration agreement means, the newspaper notes.
The nursing home and assisted-living facility industry claims that these arbitration agreements benefit residents and their families. They contend that going to arbitration instead of going to court leads to a cheaper, faster resolution of disputes about a resident’s care, the Daily Star reports.
Critics respond that the benefits of going to court outweigh any potential time and expense. They insist that litigation provides “one of the few ways that the public can learn about abuse and other wrongdoing in nursing homes,” according to the Daily Star.
As the newspaper notes, state and federal agencies provide only limited information to the public about nursing homes and assisted-living facilities in Arizona.
For instance, the Arizona Department of Health Services provides information online about “substantiated violations” at the state’s nursing homes and assisted-living facilities. However, this information looks back only three years. Also, the site does not allow people to see specific allegations, “so there’s no way to track patterns in complaints or assess their severity,” according to the newspaper.
Additionally, the U.S. Centers for Medicare and Medicaid Services (CMS) provides a “five-star quality rating system” that the public can view online. However, the ratings apply only to nursing homes – not assisted-living facilities.
In other words, numerous families may accuse a nursing home or assisted-living facility in Arizona of abusing or neglecting residents. These allegations could go back several years. They could also involve a specific type of mistreatment. For instance, the allegations could all involve neglect that led to a resident’s dehydration or malnourishment. However, by using arbitration and avoiding litigation, the facility’s owner could keep this pattern of resident mistreatment a secret. A family could choose the facility for their loved one without any knowledge of potential safety risks.
As the Daily Star notes, in some cases, families successfully challenged pre-dispute arbitration agreements and got their day in court. However, challenging an arbitration agreement can add considerable time and expense to an abuse or neglect claim.
Additionally, if a claim does go to arbitration, the outcome will likely be favorable to the facility owner – not the harmed resident and family. According to National Public Radio (NPR), a study by the American Health Care Association in 2009 found that “average awards after arbitration were 35 percent lower than if the plaintiff had gone to court.”
Federal Efforts to Limit Nursing Home Arbitration Agreements
In September 2016, the Centers for Medicare & Medicaid Services (CMS) issued a new rule that banned “so-called pre-dispute binding arbitration clauses in nursing home contracts,” according to NPR. The rule applied to nursing homes that receive Medicare or Medicaid funding, “which is nearly all of them,” NRP reports.
The rule was supposed to take effect in November 2016. Yet, as Modern Healthcare explains, a “judge in the U.S. District Court for the Northern District of Mississippi in November  granted a request by the American Health Care Association, the industry trade group, and four other state and local health care groups for an injunction.” As a result, CMS cannot implement the ban until the court lifts the injunction.
Discuss Your Case with a Phoenix Elder Abuse Attorney
Families should pay close attention to the documents they sign when admitting their elderly loved one to a nursing home or assisted-living facility. They should also know that signing pre-dispute arbitration agreements is not required.
“You are permitted to strike a line through it. Do not initial it. It’s not a condition of admission,” one elder law attorney told the newspaper.
If you have concerns about a particular facility or suspect that your elderly loved one has been the victim of nursing home abuse or neglect, make sure to contact an experienced elder abuse attorney in Phoenix to assist with your case.
Zachary Mushkatel is an Arizona native who earned his undergraduate degree from the University of Arizona in 2001 and his law degree from the University of Minnesota Law School in 2004. After serving as a public defender, he entered into private practice and, ultimately, joined forces with Mathis Becker to form the law firm known today as Mushkatel, Robbins & Becker, PLLC. In addition to criminal law, Mushkatel practices civil litigation, with a focus on estate litigation and personal injury cases. He also serves on the Board of Directors for the Surprise Regional Chamber of Commerce and Sun Valley Lodge, and he is an executive officer and member of the Board of Directors for the West Maricopa County Bar Association.