Is your elderly loved one currently living in a nursing home or assisted-living facility in the Chicago area? Or are you helping a senior in your family to find a local nursing home or assisted-living facility that will provide a high quality of care? Helping an older adult move into a nursing facility can be an emotionally exhausting experience for the senior and for his or her family members. While it can be difficult to focus on the precise legal clauses in entrance agreements to these facilities, it is extremely important to be aware of binding arbitration agreements and how they can limit seniors’ rights in the event of elder abuse and neglect.
What do you need to know about arbitration agreements in Illinois nursing homes and assisted-living facilities?
First, what is a binding arbitration clause? As a press release from the Consumer Financial Protection Bureau (CFPB) explains, “forced pre-dispute arbitration agreements require consumers to agree in advance to resolve disputes through an arbitration process instead of a court of law and are frequently used in a range of consumer contracts.” In particular, arbitration clauses are becoming “increasingly common in long-term care facility admission contracts that individuals must sign before they or their loved ones can be admitted into a nursing home, assisted-living facility, or other long-term care setting.”
What effect do these agreements have in practice? In brief, they require nursing home patients and their families to handle any disputes that might arise—including allegations of elder abuse and neglect—through an arbitration process instead of filing a lawsuit. To be clear, an arbitrator will decide whether the injured party should be compensated for elder abuse injuries instead of a judge or jury. Often, arbitration results in lower or nonexistent awards for plaintiffs, and as such, the CFPB suggests that these agreements can be particularly harmful to nursing home residents as they “strip these individuals of their constitutional right to a trial by jury.”
Recognizing the potential harms of arbitration clauses in nursing home agreements, elder safety advocates have pushed for a nationwide ban on such clauses. In September of 2016, the Centers for Medicare and Medicaid Services (CMS) issued a final rule, after receiving input from a number of different parties, that would ban pre-dispute arbitration agreements in nursing facilities, according to an article in McKnight’s. The rule was supposed to take effect on November 28, 2016.
However, as a report from Modern Healthcare explains, CMS postponed the ban after a federal judge in Mississippi issued an injunction against the rule. Until the injunction is lifted, the rule likely cannot take effect. In the meantime, however, Chicago nursing home residents still may be bound by arbitration clauses in their entrance agreements. As such, it is important to read the paperwork extremely carefully before signing nursing home agreements for an elderly loved one. And if your elderly parents or relatives already are living in a facility, you should determine whether they will be bound by a pre-dispute arbitration agreement in the event of allegations concerning elder abuse or neglect.
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