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Be wary of nursing home arbitration clauses

Entering a nursing home is usually a difficult time for everyone involved—and that's before the paperwork gets started.

Yet, every day, seniors or their relatives are asked to wade through a dizzying array of admission forms in order to get access to needed nursing home care, usually when they're at their most vulnerable.

That makes it seem particularly unfair to bury an arbitration clause in the middle of the fine print—a clause which strips the senior and his or her relatives of the power to sue, should something go wrong.

Nursing home arbitration clauses have become the focus of an intense series of legal battles in just the recent year. Spurred on by several cases of nursing home negligence where failures to properly monitor patients have led to tragic results, the Centers for Medicare and Medicaid Service adopted a new rule that would have prohibited any nursing home that accepts Medicare or Medicaid funds from putting pre-dispute arbitration clauses, also known as forced arbitration, in their contracts.

That rule is already facing challenges from nursing home groups. Originally, it was supposed to go into effect in November 2016, but a federal judge granted an injunction temporarily halting the changes until another lawsuit against the rule is resolved.

Where does this leave potential nursing home residents and their families?

Generally speaking, arbitration clauses were designed to be a low-cost alternative to lawsuits and were supposed to create a fairer, friendlier atmosphere for dispute resolution. In practice, however, many people believe that nursing homes use them to bury patient and family complaints and to keep even the most extreme acts of negligence from going into court. Families and seniors are often left feeling powerless, especially once they realize they were forced to sign away their right to sue for neglect in the court system in order to get admission.

In many cases, there are legitimate concerns about the ability of a senior to actively even understand the contract he or she is signing, especially if the senior is already showing signs of dementia. In other cases, family members without the proper power of attorney sign the contract on their behalf, which may not be legal but is still expensive to challenge in court.

For the time being, those about to enter a nursing home may want to have their contracts reviewed by an attorney to make sure that they aren't signing away their rights to sue.

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