The Centers for Medicare & Medicaid Services (CMS) recently proposed a rule forbidding nursing homes from “requiring residents to sign binding arbitration agreements,” and according to a recent article in Modern Healthcare, the rule is “long overdue.” While California currently requires nursing homes to use only voluntary arbitration agreements—something that the American Health Care Association has been seeking—even voluntary agreements can pose problems for nursing home residents in the event of an elder abuse claim.
Are Voluntary Agreements Always Voluntary?
To have a better understanding of why even voluntary arbitration agreements might not be so great, it’s important to recognize why nursing homes and other facilities use them in the first place. In short, they “help nursing homes avoid costly litigation.” In other words, if a patient (or her family) thinks about filing a nursing home neglect lawsuit, an arbitration agreement can prevent her from doing so. Instead, she’ll have to go through arbitration. And many arbitration agreements—even voluntary ones—appear amidst a lot of other paperwork that appears when a patient enters a nursing home.
It’s clear that mandatory arbitration agreements are detrimental to patients. But given that California already requires voluntary agreements, do those ultimately end up working any differently? According to one California elder law advocate, “every one of us could tell you horror stories about these arbitration agreements because they’re used for the wrong reasons all the time.” To be sure, the proposed rule “might not solve the issue of residents feeling as if they have no choice but to sign even voluntary agreements.”
The proposed rule does include language about requiring facilities to ensure that, when residents sign a voluntary arbitration agreement, they know what they’re signing. In particular, the drafters of the rule are concerned about the unequal bargaining power between nursing homes and residents who need care. To contend with that possibility, the rule instructs facilities to explain the language in an arbitration agreement “to the resident in a form, manner, and language that he or she understands, and have the resident acknowledge that he or she understands the agreement.”
Looking Out for the Patient’s Side of the Story
But even if a nursing home must explain an arbitration agreement in plain language to a resident, can we really trust that the resident truly understands what she’s signing? According to Stephen Ware, a law professor at the University of Kansas, “you can imagine the nursing home’s witness giving his or her side of that story, and you can imagine the resident or resident’s child giving his or her side of that conversation.”
Ware also has concerns about “who might be assigned to explain the agreements to residents.” Indeed, “detailed training would be needed” to ensure that elderly patients have a grasp on the language they’re hearing. The University of Kansas professor suggests that a uniform document that explains voluntary arbitration agreements could be particularly useful.
And in California, advocates contend that voluntary arbitration agreements simply look like they’re “part of the admissions packet” to a nursing home. In other words, even if patients aren’t absolutely required to sign, it looks like they’re required based on how the paperwork is presented.
If you are concerned about a loved one’s safety in a Southern California nursing home, it’s important to connect with a San Diego nursing home abuse lawyer about your case. Contact the Walton Law Firm today.
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