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Nursing Home Arbitration Agreements Unfair to Residents

Jun 18, 2008 | Parker Waichman Alonso LLP

Nursing home abuse and neglect has reached epidemic levels.  Unfortunately, many nursing home patients and their family are signing away one of the most important tools in the fight against abuse and neglect - their right to sue.

The National Center on Elder Abuse estimates at least one in 20 nursing home patients has been the victim of negligence and or abuse, though it concedes that the number is probably higher.  According to the National Center’s study, 57% of nurses’ aides in long-term care facilities admitted to having witnessed, and even participating in, acts of negligence and abuse.  Data from the U.S. Centers for Disease Control and Prevention show that nursing home neglect played role in the deaths of nearly 14,000 nursing home patients between 1999 and 2002. Even when the consequences are not fatal, nursing home negligence robs victims of a sense of security and their dignity.

When abuse or negligence occurs, a lawsuit can be one of the most effective ways to force a nursing home to change its ways.  Often, the conditions that lead to nursing home abuse and negligence - such as understaffing, inadequate meals, etc. - are the result of management's attempts to cut costs.  Sometimes, it is only after the nursing home is forced to pay a hefty lawsuit settlement or judgment  that conditions at a facility will change for the better.  

Unfortunately, rather than maintain safe facilities for their residents, many nursing homes would rather find other ways to avoid lawsuits.  To that end, some nursing homes have started requiring new residents and their families to sign documents that take away their rights to file a lawsuit, and must agree to submit any complaints to binding arbitration.  These arbitration agreement are becoming more common, as more and more nursing homes are acquired by giant corporations.  

The arbitrators in these nursing home abuse cases are usually corporations themselves,  and they are generally paid by the company that owns the nursing home named in the complaint. While the arbitrator is supposed to be an independent party, critics of these agreements say they serve as a shield to for nursing home companies to avoid the consequences of budget and staffing cutbacks.

 The nursing home industry defends itself by pointing out that arbitration is voluntarily agreed to and not a condition for admission.  But the process of admitting a loved one to a nursing home is often stressful, and accompanied by a slew of paperwork.  Many families who have complained about the arbitration process claim they were not really aware of the ramifications of signing an such an agreement.  

The confusion over nursing home arbitration agreements has led to the filing of more than 100 lawsuits challenging them.  And the controversy has gotten the attention of Congress, where a Senate committee is holding hearings on the issue this week.  Both the House and Senate are also considering bills that would make nursing home arbitration agreements unenforceable.

Sen. Herb Kohl, D-Wis., who heads up the Senate Committee on Aging, told the Associated Press that the proposed legislation is not seeking to ban arbitration agreements entirely.  Rather, it would require that the decision to go to arbitration would need to be made by both parties after a dispute occurs, not at the time a resident is first admitted to a facility.