“Congress could not possibly have intended for the Federal Arbitration Act to override every other law and leave consumers locked out of the courthouse without legal protection”
“And the unfairness of that is brutally clear when you consider nursing home residents who are so dependent on their caretakers, and so vulnerable to neglect and abuse.”
-George Slover, senior policy counsel for Consumers Union
Source: The Consumerist
A new delay has arrived to block September’s rule preventing nursing home and long-term care facilities from imposing forced arbitration on new residents. The rule issued by the federal Centers for Medicare & Medicaid Services (CMS) trades arbitration clauses for Medicare and Medicaid. If a facility wants to accept Medicare or Medicaid they would be prevented from putting forced arbitration clauses in new residential agreements.
The American Health Care Association (an industry trade group) and others sought a preliminary injunction which would bar the government from enforcing the rule pending a review of the merits of the case. As The Consumerist notes there was irony in the fact that the AHCA availed of a lawsuit to obtain a delay. Additionally, Judge Michael Mills’ comments in his order granting the preliminary injunction were probably not the publicity the industry would have hoped for.
Judge Michael Mills challenged the industry on several counts, but most strenuously on the mental competence of vulnerable nursing home residents to sign the contracts represented by arbitration agreements.
“There is no more basic defense to the validity of a contract than lack of mental competency”, Judge Michael Mills said. The Judge cited figures from the National Health Center for Health Statistics that 50.4% of nursing home residents have been diagnosed with Alzheimer’s or other dementias, which is often the reason why their families are seeking more permanent care for them. In response to the AHCA’s protest that courts do invalidate arbitration agreements signed by parties who are deemed to be mentally incompetent, Judge Mills was pessimistic: “Many nursing homes will obtain signatures from residents in spite of grave doubts about their mental competency, or, more often, they will choose to have relatives of the residents sign the agreements, even when no power of attorney has been executed.” “This court has repeatedly seen these facts play out in its courtroom, and it has seen these fact patterns repeatedly arise in published decisions from other Mississippi courts.”
The Judge also questioned the industry’s arguments in favor of arbitration’s efficiency. When issues of mental competency arise nursing homes may file motions to compel arbitration, which in itself is time consuming and may result in further battles. With such large numbers of elderly people vulnerable to signing their rights away, it’s clear that arbitration is a far from ideal instrument for resolving abuse. Many nursing home residents are vulnerable to abuse, and arbitration blocks them not only from their day in court, but also from their right to challenge systematic abuse with class actions.
Nursing home residents and their families shouldn’t face obstacles to challenging systematic or individual cases of abuse. The possibility of abuse should be taken seriously when so many people in long-term care facilities are vulnerable and may suffer from fading mental competency and physical weakness.
If you or a loved one has been affected by nursing home abuse please call Parker Scheer for a free and confidential consultation.