Nursing Homes

Editor's note: This Shark believes that forced arbitration in the hands of the crooks running the Probate Court of Cook County would result in more usurpations of the rights of the dying, dead, handicapped and aged.  Lucius Verenus, Schoolmaster, ProbateSharks.com


Nursing Homes

Nursing homes are now Big Business.  As baby boomers begin to need nursing home facilities, profit-focused corporate chains have dominated the market. This increase in residents and emphasis on profits has led to a distressing rise in neglected and abused seniors.  But instead of improving safety, corporate nursing homes are working to limit their accountability and deny residents’ rights.

There are many laws and regulations aimed at protecting seniors. Yet government agencies, non-profit watchdogs and media organizations consistently report that serious problems persist in our nation’s nursing homes.

Between 2000 and 2008, instances of events that cause “immediate jeopardy”- violations likely to result in serious harm or even death - rose 22 percent.  More than 90 percent of all nursing homes were guilty of at least one violation.

With regulatory and legislative bodies unable to cope with a groundswell of neglect and abuse, the civil justice system has stepped into the breach. Attorneys who represent our nation’s seniors and their families play a critical role in uncovering abuse and neglect and serve as an effective force to compel irresponsible nursing homes to fix their conduct.

But many corporate nursing homes attempt to evade accountability by hiding dangerous forced arbitration clauses in the fine print of admission contracts.  These forced arbitration clauses allow corporations to get away with wrongdoing by denying residents and their families access to the civil justice system.

The New York Times recently published an investigative three part series of front page stories exposing the corporate bullying tactic of forced arbitration. The second story, "In Arbitration, a Privatization of the Justice System" tells stories of consumers who lost their right to go to court - including when a nursing home had done them wrong.

Accountability is essential to ensuring nursing homes are safe.  We must stand up for the most vulnerable in society and make sure they are protected.

Dangers Hidden in the Fine Print of Nursing Home Contracts:

• The decision to place a family member in a nursing home is a difficult and often immediate one for families.  When handed nearly a hundred pages in an admission contract, few families have the time or knowledge to closely read the fine print.  And even fewer have an attorney present. 
• The corporate nursing home industry is notorious for forcing patients and their families to sign away their rights under binding mandatory arbitration.
• Forced arbitration is an unfair practice that allows negligent corporations to get away with wrongdoing by denying residents and their families access to the civil justice system.
• Additionally, forced arbitration allows negligent nursing homes to keep the facts of cases secret. Even if a case raises important public health and safety issues, the public may never find out about the irresponsible actions and the negligence will continue.

Federal Legislation
Representative Linda Sanchez (D-Calif.) introduced the Fairness in Nursing Home Arbitration Act (H.R. 6351) in the 112th Congress to prevent nursing home corporations from using forced arbitration in their admissions contracts.

Forced arbitration clauses prey on families when they are most vulnerable.  We should be protecting the elderly and the defenseless in our society – and not allowing corporations to use loopholes that take advantage of them.  H.R. 6351 would ensure that the decision to arbitrate is made voluntarily and only after a dispute has occurred.

Suing A Nursing Home Could Get Easier Under Proposed Federal Rules

October 19, 2015 3:30 PM ET

Ina Jaffe

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Proponents of arbitration say the system is more efficient than going to court for both sides, but arbitration can be costly, too. And a 2009 study showed the typical awards in nursing home cases are about 35 percent lower than the plaintiff would get if the case went to court. Heinz Linke/Westend61/Corbis hide caption

itoggle caption Heinz Linke/Westend61/Corbis

Proponents of arbitration say the system is more efficient than going to court for both sides, but arbitration can be costly, too. And a 2009 study showed the typical awards in nursing home cases are about 35 percent lower than the plaintiff would get if the case went to court.

Heinz Linke/Westend61/Corbis

As Dean Cole's dementia worsened, he began wandering at night. He'd even forgotten how to drink water. His wife, Virginia, could no longer manage him at home. So after much agonizing, his family checked him into a Minnesota nursing home.
"Within a little over two weeks he'd lost 20 pounds and went into a coma," says Mark Kosieradzki, who was the Cole family's attorney. Dean Cole was rushed to the hospital, says Kosieradzki, "and what was discovered was that he'd become totally dehydrated. They did get his fluid level up, but he was never, ever able to recover from it and died within the month."
Kosieradzki says that Virginia Cole had signed a stack of papers when her husband was admitted to the nursing home. As is often the case, one of the forms was a binding agreement to go to arbitration if she ever had a claim against the facility. So instead of taking the nursing home to court, her claim for wrongful death was heard by three private arbitrators. They charge for their services.
"The arbitration bill for the judges was $60,750. That was split in half between the two parties," says Kosieradzki.
Virginia Cole won her claim, but after paying the arbitrators, expert witnesses and attorney's fees, she was left with less than $20,000.

Shots - Health News

Administration Proposes Rules To Modernize Nursing Home Safety

The federal government is now considering safeguards that would regulate the way nursing homes present arbitration agreements when residents are admitted.
But more than 50 labor, legal, medical and consumer organizations have told the government that's not enough. They want these pre-dispute arbitration agreements banned entirely. Thirty-four U.S. senators and attorneys general from 15 states and the District of Columbia also have called for banning the agreements.
"No one should be forced to accept denial of justice as a price for the care their loved ones deserve," says Henry Waxman, a former congressman from California. Arbitration agreements keep the neglect and abuse of nursing home residents secret, Waxman says, because the cases aren't tried in open court and resolutions sometimes have gag rules.
"None of the systemic health and safety problems that cause the harm will ever see the light of day," he says.
The proposed federal regulation would require nursing homes to explain these arbitration agreements so that residents or their families understand what they're signing. It would also make sure that agreeing to arbitration is not a requirement for nursing home admission.
The American Health Care Association, which represents most nursing homes, is against this proposed change in the rules. Clifton Porter II, the AHCA's senior vice president for government relations, says that's because "they're prescribing us to do things that we, frankly, already do." Porter acknowledges, however, that practices vary from facility to facility, depending on state law.
Arbitration agreements, he says, are common throughout the health care industry — in hospitals, surgery centers and doctors' offices. "Why aren't rules being promulgated to eliminate arbitration in those settings?" he asks.
In any case, Porter says arbitration is more efficient for both sides than going to court would be.
"It actually allows consumers to get an expedited award," he says. "And you have the benefit of not having to use the courts and go through the entire process."
But that expedited award is about 35 percent lower than if the plaintiff had gone to court. That's one conclusion of a study commissioned by Porter's organization in 2009.
If the federal government does regulate or ban the signing of arbitration agreements for new nursing home residents, Porter says the American Health Care Association will probably fight the move in court.

• forced arbitration
• nursing
• nursing homes
• families
• eldercare
• abuse