Centers for Medicare & Medicaid Services

CHICAGO, IL – Nursing homes in Illinois often ask residents to sign an arbitration agreement as long as it is drafted in compliance with Illinois law. Some nursing homes practice forced arbitration by removing residents right to file a claim through the public court system in a formal, signed agreement. The American Bar Association (ABA) defines arbitration as “a private process where disputing parties agree that one or several individuals can make a decision about the dispute after receiving evidence and hearing arguments.”

Arbitration is similar to what happens in trial in terms of those who are involved will present their case along with evidence to an arbitrator; however, parties may not have to follow state or federal rules of presenting evidence. At the same time, arbitrators are not always required to apply the governing law.

The American Association for Justice (AAJ) collected five years of data on consumer and employment forced arbitration reported by the nation’s two largest arbitration providers: the American Arbitration Association (AAA) and Jams. The findings concluded were:

On average, only 382 consumer per year win a monetary forced arbitration.
There are more than 800 million arbitration clauses estimated to be in effect. The study found there are only 6,000 consumer arbitration claims filed each year.
Over the five years studied, consumers brought 6,012 claims valued around $3.7 billion in damages. They won monetary awards in only 131 cases.
Americans are more likely to be struck by lightning than they are to win a forced arbitration.
Over the span of the five-year study, only 16 nursing home arbitrations were reported to AAA. No residents won their case while nursing home corporations won four of the six they initiated.

How Americans Are Hurt By The Fine Print

Nursing homes facilities often try to sneak protections for themselves into Admission Agreements before residency even begins. The effects arbitration clauses have on residents can be determinantal. The AAJ mentions the effects residents endure by not reading arbitration clauses:

One-sided requirements: Most forced arbitration clauses require residents to waive their rights, while allowing nursing homes to sue in court.
High costs: In addition to hiring a lawyer, the resident or family has to often pay hefty fees just to initiate their case and pay their share of the arbitrator’s hourly charges. Forced arbitration clauses also allow the nursing home to choose the location, regardless of the inconvenience or costly travel for the resident.
Biased Decision-Makers: Nursing homes are repeat users of an arbitrator, meaning there is a disincentive for arbitrators to rule in favor of nursing homes.
Weak Civil Justice Safeguards: Forced arbitration clauses often have tight restrictions on the individual’s ability to argue his/her side of the case. For example, many arbitrators restrict the individual’s ability to obtain necessary evidence. It is also nearly impossible to appeal decisions by arbitrators. According to experts cited by the Washington Post, the amount of damages awarded, if any, has the potential to be less if the case were to be heard by an arbitrator as opposed to going to trial.
Secret Backroom Proceedings: Most forced arbitration clauses require that proceedings be kept confidential, even if the case raises important public health and safety issues.
Bounding: Parties are bound by the terms of the contract so wrongful death claims brought on behalf of a resident’s next of kin are not bound by the arbitration agreement.

Know What You’re Signing Before You Sign It

According to Illinois General Assembly, an arbitration agreement “may bar an action at law against any hospital or health care provider who is a party to the agreement on the grounds of respondeat superior for the negligence or other wrongful act of any employee reasonably alleged to have caused the injuries on which the claim is based.”

Under the Health Care Arbitration Act, it requires certain provisions to be included in arbitration agreements to make the information more conspicuous to signatories. Illinois contract requires that a person must possess sufficient mental capacity in order to sign a contract. This issue arises often in nursing home settings where a resident may not be mental competent due to dementia or Alzheimer’s. A resident or family member who does not feel confident that they have a firm understanding of what rights they’re waiving by signing the contract should seek advice from an experienced nursing home abuse and negligence attorney.

CMS Final Rule on Forced Arbitration, July 2019

Forced arbitration practices change throughout administrations. In 2016, the Obama administration banned forced arbitration only to be turned over by the Centers for Medicare & Medicaid. Under the Final Rule published in July, long-term care facilities must comply with the following criteria:

Not require a resident or his/her representative sign an agreement for binding arbitration as a condition of admission to, or as a requirement to continue to receive care at a facility.
Ensure that the agreement is explained to a resident or his/her representative in a form, manner, and language that he/she must acknowledge that he/she understands the agreement.
Ensure that the agreement provides for the selection of a neutral arbitrator agreed upon by both parties and a venue that is convenient to both parties.
Ensure that the agreement does not contain any language that prohibits or discourages the resident or anyone else from communicating with federal, state, or local officials.
Retain copies of the signed agreement for binding arbitration and the arbitrator’s final decision for five years after the resolution of any dispute resolved through arbitration with residents. These documents must be available for inspection upon request by CMS or its designee.
Grant residents a 30-calendar day period during which they may rescind their agreement to arbitrate.

How the Dinizulu Law Group, Ltd. Can Help You

If you or a loved one has suffered injury or death due to a nursing homes negligence, you make seek compensation to hold wrongdoers accountable. Our attorneys have experience in interpreting nursing home agreements and know when our clients are being mistreated.

Our consultations are always free and confidential. Please call our office located in downtown Chicago, Illinois for a free consultation at (312) 384-1920 or visit our website for more information.

CHICAGO, IL – The Centers for Medicare & Medicaid Services (CMS) has issued a memo affirming the continued right that nursing home residents are allowed to exercise their right to vote. The memo recognizes limitations visitors have to enter facilities to assist residents in voting; however, nursing homes must still ensure residents are able to exercise their Constitutional right to vote.

Residents’ Rights include:

483.10(b) Exercise of Rights: The resident has the right to exercise his or her rights as a resident of the facility and as a citizen or resident of the United States
483.10(b)(1): The facility must ensure that the resident can exercise his or her rights without interference, coercion, discrimination, or reprisal from the facility
483.10(b)(2): The resident has the right to be free of interference, coercion, discrimination, and reprisal from the facility in exercising his or her rights and to be supported by the facility in the exercise of his or her rights as required under this subpart

A resident has the right to vote and must not be impeded in any way by the nursing home facility and its staff. Nursing homes should have a plan in place to ensure residents are able to exercise their right to vote, whether in-person, by mail, absentee, or other authorized process. Some states may have specific programs to enable nursing home residents to vote in which the facility should coordinate and engage with those programs. This may include:

Mobile Polling in residential facilities performed by a bipartisan team of workers; and/or
Assistance in registering to vote, requesting an absentee ballot, or completing a ballot from an agent of the Resident’s choosing, including family representative, LTC Ombudsmen or nursing home staff

If a resident is unable to cast their ballot in person, nursing homes must ensure residents have the right to receive and send their ballots via the U.S. Postal Service, or other authorized mechanism allowed by the State or locality.

CMS regulations specific to use of mail, which also apply to voting, for voting, include:

483.10(g)(7): The facility must protect and facilitate that resident’s right to communicate with individuals and entities within and external to the facility, including reasonable access to: (i) A telephone, including TTY and TDD services; (ii) The internet, to the extent available to the facility; and (iii) Stationery, postage, writing implements and the ability to send mail
483.10(h)(2) The facility must respect the residents right to personal privacy, including the right to privacy in his or her oral (that is, spoken), written, and electronic communications, including the right to send and promptly receive unopened mail and other letters, packages and other materials delivered to the facility for the resident, including those delivered through a means other than a postal service
- Promptly meaning the delivery of mail or other materials to the resident within 24 hours of delivery by the postal service, including a post office box, and delivery of outgoing mail to the postal service within 24 hours, except when there is no regularly scheduled postal delivery and pick-up service.

Additional information is available from the HHS Administration for Community Living related to voting rights and resources, as well as contact information for Long Term Care Ombudsmen can be found here.