Thursday, September 29, 2016

U.S. to Bar Arbitration Clauses in Nursing Home Contracts

U.S. to Bar Arbitration Clauses in Nursing Home Contracts



kenneth ditkowsky 

7:22 PM (10 hours ago)


Arbitration was sold as a way to avoid the delay of courts; however, in reality in so many arbitration situations it is a way to 'salt' the proceedings in favor of the imposing contractor.   For instance, if you have a dispute with your stock broker you have mandatory arbitration to deal with.   The arbitrator is tied to the industry and some wild and inconsistent decisions are imposed.  In some construction cases ******.

The nursing home industry imposes contracts on customers who are usually in no position to give due consideration to terms of a contract.   A patient who recently suffered a heart attack cannot be expected to give due consideration to a writing, and certainly his/her spouse is not expected to be interested in what the contract says or does not say.   Ditto for most other illness that are so serious that skilled nursing services are required.  

That said, discovery opportunities are lessened for claimants in the arbitration situation and in fact the playing field is not level.   The record keeping of the facilities that I examined have usually been very creative and geared to being uninformative.   A clear example is illustrated by the fact that Philip Esformes was able to steal a billion dollars from Medicare.   (A billion dollars!!!!!).   Government auditors are usually pretty good, but, substantial theft from government is the usual not an exception.   Seth Gillman in his hospice operation stole 100's of millions of dollars and Omnicare overcharged in amounts in excess of hundreds of millions.   John Doe in dealing with the nursing home cadre is fighting a difficult battle even on a level playing field.

Another problem exists - corruption in government.   The theft that appears to exist is so great that it could not exist without governmental attornment.   We get a clear confirmation of systematic and institutional corruption by the outrageous actions of the Illinois Supreme Court and the Illinois Attorney Registration and Disciplinary Commission.    In particular,  the Illinois legislature barred the payment of compensation to unlicensed court reporters.  Jerome Larkin not only hired unlicensed court reporters but allegedly ordered the reporters to alter transcripts to eliminate testimony that did not support the alleged perjury that he was suborning.  As he had the unlicensed Court reporters at his total control they literally had to do what he demanded.    His perfidy was discovered in the JoAnne Denison disciplinary proceedings.   She filed discovered the criminal behavior on the part of Larkin and the commission and as they did it in the Supreme Court of Illinois she sought a Rule to enter against them.  Larkin did not deny the misuse of public money.   If you did what he did you would be charged with embezzlement.  Not only did the Supreme Court deny the Rule, but they did not require him and the IARDC to follow the law.   Of course the States Attorney and/or the Attorney General get excited.   The Rule of Law does not apply to public officials -

In this climate every protection possible has to be afforded to the public.    The idea of double standards of justice is abhorrent!    In fact it cannot be tolerated!

Ken Ditkowsky

To: Ken <>
Sent: Wednesday, September 28, 2016 6:28 PM
Subject: U.S. to Bar Arbitration Clauses in Nursing Home Contracts

U.S. to Bar Arbitration Clauses in Nursing Home Contracts


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A case involving Elizabeth Barrow, a 100-year-old woman who was found murdered in a nursing home in 2009, was initially blocked from court. CreditIan Thomas Jansen-Lonnquist for The New York Times
The federal agency that controls billions of dollars in Medicaid and Medicaid funding has moved to prevent nursing homes from forcing claims of elder abuse, sexual harassment and even wrongful death into the private system of justice known as arbitration.
The agency, the Department of Health and Human Services, on Wednesday issued a rule that bars any nursing home or assisted-living facility that receives federal funding from inserting an arbitration clause into its contracts.
The rule, which would affect 1.5 million nursing home residents, promises to deliver major new protections.
Clauses embedded in the fine print of nursing home admissions contracts have pushed disputes about safety and the quality of care out of public view and into arbitration. The system has helped the nursing home industry reduce its legal costs, but it has stymied the families of nursing home residents from getting justice, even in the case of murder.
A case involving a 100-year-old woman who was found murdered in a nursing home, strangled by her roommate, was initially blocked from court. So was a case brought by the family of a 94-year-old woman who died at a nursing home in Murrysville, Pa., from a head wound that had been left to fester. The cases were the subject of a front-page article in The New York Times last November.
“The sad reality is that today too many Americans must choose between forfeiting their legal rights and getting adequate medical care,” Senator Patrick Leahy, a Vermont Democrat, said in a statement on Wednesday.
The new rule comes after officials in 16 states and the District of Columbia urged the government to cut off funding to nursing homes that use the clauses, arguing that arbitration kept patterns of wrongdoing hidden from prospective residents and their families.
With its decision, the federal agency has restored a fundamental right of millions of patients across the country: their day in court.

Examining how clauses buried in tens of millions of contracts have deprived Americans of one of their most fundamental constitutional rights: their day in court.

Arbitration Everywhere, Stacking the Deck of JusticeOCT. 31, 2015

In Arbitration, a ‘Privatization of the Justice System’NOV. 1, 2015

In Religious Arbitration, Scripture Is the Rule of LawNOV. 2, 2015

Efforts to Rein In Arbitration Come Under Well-Financed AttackNOV. 15, 2015

Bipartisan Bill Would Protect Service Members’ Right to Avoid ArbitrationNOV. 20, 2015

Arbitration Is Target of New Bill in SenateFEB. 4, 2016

Nursing Home Suit Raises the Question: Who Signed the Contract?FEB. 22, 2016

House Democrats Call for Curbs on Required ArbitrationAPRIL 14, 2016

Rule on Arbitration Would Restore Right to Sue BanksMAY 4, 2016

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