How reliable are the ratings given nursing homes under the five-star rating system that the federal government recently insti...Read more
Bill Would End Nursing Homes' Growing Practice of Asking Patients to Arbitrate
- April 11th, 2008
Two U.S. senators have introduced legislation that would end the practice of nursing home residents signing away their right to a trial before any actual dispute with the facility has arisen.
Nursing homes are increasingly asking -- or forcing -- patients and their families to sign arbitration agreements prior to admission. By signing these agreements, patients or family members give up their right to sue if they believe the nursing home was responsible for injuries or the patient's death. The Fairness in Nursing Home Arbitration Act (S.2838), introduced by Sens. Mel Martinez (R-FL) and Herb Kohl (D-WI), chairman of the Special Committee on Aging, would make arbitration agreements signed before a dispute arises unenforceable, although it would still permit the parties to agree to arbitration after a dispute over care has arisen.
"When a family makes the difficult decision to help a loved one enter a nursing home, among the primary considerations is quality care. Forcing a family to choose between quality care and forgoing their rights within the judicial system is unfair and beyond the scope of the intent of arbitration laws," said Sen. Martinez. "This effort restores the original intent and tells families that they don't have to sign away their rights in order to access quality care."Â
The increased use of arbitration agreements has been paying off for the nursing home industry, according to a recent article in the Wall Street Journal. A study by Aon Global Risk Consulting projects that nursing homes' average costs per claim will drop from about $226,000 for incidents that took place in 1999 to about $146,000 for incidents that took place in 2006.
Theresa Bourdon, one of the study's authors and an Aon managing director, says that out of more than 200 claims she looked at that were subject to arbitration, none has yielded a multimillion-dollar payout. "We are not seeing big pops," Ms. Bourdon says.
But as industry litigation costs have been dropping, claims of poor treatment are on the rise, the Wall Street Journal reports. Meanwhile, patient advocates say that those seeking admission to a nursing home are in no position to make a determination about giving up their right to sue. Courts have sometimes struck down arbitration agreements as unfair, but others have upheld them. In Ohio last year, a court upheld an agreement signed by a woman who had entered a home from a hospital and was suffering intermittent bouts of confusion.
To read the Wall Street Journal article, click here. (Online subscription required.)
To read a Washington Post editorial supporting the proposed legislation, click here.
For more on nursing home admission agreements, click here.
Local Elder Law Attorneys in Ashburn, VA
The Law Firm of Evan H. Farr, P.C.
In practice since 1987, Fairfax Attorney Evan Farr is widely recognized as one of the leading Elder Law, Estate Planning, and Specials Needs attorneys in Virginia and one of foremost experts in the Country in the field of Medicaid Asset Protection and related Trusts. Evan Farr has been quoted or cited as an expert by n...
The Estate Planning & Elder Law Firm PC
Bill founded The Estate Planning & Elder Law Firm, P.C. in 1994. Bill limits his practice to the areas of estate planning and administration, incapacity planning, Medicaid, asset protection planning, and elder law. He is one of (15) fifteen attorneys practicing in Virginia, Maryland and the District of Columbia, ce...
Margaret A. O'Reilly, PC
Margaret A. O’Reilly is an estate planning and elder law attorney with over thirty-five years of legal experience. Attorney O’Reilly graduated from Duke University with a degree in psychology, and received her law degree from Northeastern University School of Law in Boston, Massachusetts. For over 15 y...