In a previous post, we discussed a new policy under the current administration that is limiting the consequences a nursing home faces for mistreatment of their residents. In this post, we discuss another recent policy change—which robs mistreated nursing home residents of their right to a trial in court.

A recent policy under the current administration allows nursing homes to include forced arbitration clauses in their residency agreements. Under this requirement, if a resident experiences neglect or abuse in the nursing home, they cannot sue the nursing home or seek justice from a jury in court.

Instead, they must resolve the issue through arbitration. This option has two negative consequences:

  • It limits the amount of compensation a resident can receive. The arbitrator usually works for the nursing home and aims to reach a settlement that is in their best interest.
  • It sweeps the incident under the rug. Arbitration happens outside of a courtroom. It happens privately—out of the public eye. If, for example, a resident is sexually abused by a nursing home employee, it prevents the public from learning that a dangerous predator was hired in that nursing home. A trial, by contrast, sheds light on wrongdoing.

Despite these new federal policy changes, the Centers for Medicare and Medicaid Services (CMS) is still requiring that nursing homes:

  • Explain any arbitration agreement to the resident and their family in simple terms
  • Inform the residents that they do not need to sign the arbitration agreement
  • Inform the resident that they can rescind an arbitration agreement within 30 days of signing

Forced arbitration can leave your elderly loved on in a difficult position to seek justice – should they become the victim of neglect or abuse. Understanding your parent’s right to refuse arbitration clauses is an important first step to protecting their rights.