Uncle Sam’s bad reverse: nursing homes returning to forced arbitration


Look out Baby Boomers and Gen Xers: Just when you or your elderly loved ones may be most vulnerable and needing nursing home care, the government is going back to allowing nursing home administrators to push a pile of documents for you to sign at you at admission time. And when you put your John Hancock on some of these, you will give away important legal protections.

The Centers for Medicare and Medicaid, overseer of 1.5 million nursing home residents and more than $1 trillion in Medicare and Medicaid funding, has posted notice that, under Trump Administration leadership, it soon will reverse its predecessors’ plan to halt agreements that forced patients and their families to give up their right to sue. Instead, Trump officials will push them to the alternative legal process known as arbitration. Officials insist they will require nursing homes to make arbitration requirements simpler, and to ensure they’re written in plain English.

But, in keeping with a recent U.S. Supreme Court ruling in a Kentucky case, regulators are yielding to the nursing home industry’s aggressive lobbying and point of view that arbitration is simpler, easier, and will keep down costs.

Hard experience shows that this process will let nursing homes keep out of public view some serious patient harms. Seniors injured and abused in nursing home care, and their families, will be forced into a legal system in which in many ways the decks are stacked against them.

Their cases will be heard by hired guns, arbitrators who often themselves work for big legal enterprises that have frequent dealings with nursing home operators, including whether they get retained in the first place, and meaning they can benefit by maintaining favorable relationships with them. Arbitrations do not occur in open, public court rooms but often in secured office buildings or closed corporate headquarters, sometimes those of the disputing parties. They do not always follow rigorous standards that courts must on evidence. Arbitrators’ decisions are binding, and can require heavy legal lifting to contest and reverse.

In my practice, I see the huge harms that seniors and their families suffer due to nursing home neglect and abuse. It’s sad that Trump officials want to allow these facilities to hide from public view what clearly are serious problems in the industry, including terrible and more widespread than though sexual abuse of vulnerable seniors. People older than 60 around the globe, research shows, are subject to far more psychological, physical, and financial trauma from their caregivers than often is reported, including at facilities for which they, their families, and we taxpayers pay hefty sums.

Further, policy-makers have failed to reckon with an impending and already growing crisis in elder care, with Baby Boomers graying on a monumental scale: 10,000 Americans a day turn age 65, experts say, and states, especially, are lagging in providing seniors and their loved ones with the long-term care supports and services so they can stay out of nursing homes. Such measures could be cost-saving and most Americans would prefer to age at home. If they must go into institutional care, it’s bad for them and their loved ones that the Trump Administration, which also wants to slash Medicaid funding, will give nursing homes such an unfair, upper hand.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
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