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New Rule Gives Nursing Home Abuse Victims the Right to Sue

Oct 3, 2016

Thanks to a new ruling, victims of nursing home abuse and neglect will no longer be barred from court due to pre-dispute arbitration clauses. The rule, which takes effect on Nov. 28, prevents nursing homes who receive federal funding from forcing residents to sign admission contracts that contain pre-dispute arbitration clauses, in which residents agree to go through the private and secretive system of arbitration as opposed to court when problems arise. This system has been largely criticized because it protects facilities from liability when residents suffer abuse, neglect, sexual assault and death.

The rule was issued by the Centers for Medicare and Medicaid Services (CMS), an agency under Health and Human Services; it is a huge victory for nursing home residents and their loved ones. Essentially, the barring of pre-dispute arbitration clauses means that their legal rights have been restored. According to the New York Times, officials in 16 states and the District of Columbia urged the government to cut off funding from nursing homes that use forced arbitration.

In a yearlong investigation, the New York Times gathered records from over 25,000 arbitrations between 2010 and 2014. The investigation identified cases of abuse, neglect and even death that were barred from court due to arbitration clauses. NYT cites the case of a woman with Alzheimer’s who was sexually assaulted two times in two days at a nursing home. When her family tried to sue the nursing home, they were blocked due to an arbitration clause. Ultimately, they settled. A subsequent government investigation found that the facility “failed to protect” the woman.

NYT reports that binding arbitration even initially blocked a case of murder from litigation.

Under the new rule, a federally funded nursing home cannot enter into a pre-dispute arbitration agreement with residents or their representatives. Nursing homes can no longer make forced arbitration a condition of admission. Furthermore, if a nursing homes asks the resident to sign an arbitration agreement after a dispute has occurred, the new rules dictate that the agreement must be presented in a manner that the resident or representative understands. Additionally, the agreement cannot bar the resident or anybody else from talking with federal, state or local officials.

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