The Tennessean has a great editorial about the legislation that will protect nursing homes who abuse and neglect residents.  Below is a summary of the editorial.

Nursing home operators are begging the General Assembly to grant them special protections from lawsuits that might be filed by residents who are seriously wronged under their care.  What the owners want is a law that would allow nursing homes to force residents to waive their constitutional right to a jury trial and sign arbitration agreements as a prerequisite for being admitted, and they want caps on how much money a jury could award to a resident in a case against the nursing home.

This effort by the nursing home industry takes a lot of nerve. The state suspended admissions at 22 nursing homes in 2007, which was twice as many as in the previous year and three times the amount in 2005. Hundreds of residents were displaced last year because of serious health and safety violations that caused those homes to lose federal funds. Yet in this environment, the nursing home industry wants special protection from lawsuits. 

The Kansas City Star has an article about a study from the National Senior Citizens Law Center discussing clauses in nursing home agreements that violate the law.  Some admission agreements skirt state and federal laws, misleading consumers about the care they can expect and inducing them to sign away critical consumer protections.  Advocates for the elderly said the study raised serious questions about how some nursing homes operate.

The National Senior Citizens Law Center, a Washington-based nonprofit legal advocacy group for seniors and elder-care lawyers, reviewed 175 admission agreements voluntarily provided by nursing homes. The study found agreements which improperly limited a nursing home’s obligations. Others allowed discharges for vague reasons, or stuck relatives with bills they legally didn’t owe.

Toby S. Edelman, a spokesman for the Center for Medicare Advocacy in Washington, said similar studies in other states also show “ongoing concerns” with nursing home agreements.

The Missouri study found that nursing homes protect themselves by persuading seniors to waive their right to a jury trial. In 18 percent of the agreements, seniors were required to submit a dispute to arbitration, rather than sue in court.   Trial lawyers contend they have successfully fought the provisions in court as unconstitutional and unenforceable in health-care cases.

The study contends the agreements also thwart federal law by inserting provisions making it easier to evict residents. Federal law sets out six conditions that justify evicting a resident.

Carlson, the study’s author, said that under the federal reform law nursing homes cannot require a relative or a friend to become financially liable for nursing home expenses. Yet, the study found that 19 percent of the admission agreements required a financial guarantee “in direct violation” of federal law.   Such “co-guarantor clauses” are becoming more common.

The Columbia Tribune of Missouri has an article about a new study that shows nursing home admission paperwork to be confusing and takes away a resident’s fundamanetal rights without explanation to the residents.

Nursing home admission agreements are confusing, can run 10 pages or more with unfamiliar language, are often signed in moments of distress, and force residents to sign away fundamental rights.

"It’s a situation where they’re worried about health, they’re worried about their family, and often they’ll just sign anything," said Richard Royer, CEO of Primaris, a Medicare quality improvement organization.

A study released today by the not-for-profit National Senior Citizens Law Center evaluated 175 legal agreements signed by residents who entered Missouri nursing homes. The study found many agreements allow facilities to evict residents for almost any reason, limit their rights to be visited by family members and require family or friends to assume personal financial liability for care. All such provisions are in violation of the federal Nursing Home Reform Act of 1987.

The study found that 17 percent of surveyed nursing homes reserved the right to evict someone for any reason even though federal law lists only six valid reasons for eviction. Consequently, patients with Alzheimer’s disease and dementia or residents who complain about the care received are being evicted for being "difficult."

The survey also found that 19 percent of nursing homes required a guarantee asking a family member or sponsor to take financial responsibility for the cost of care. The study argues it’s illegal to require fiscal responsibility and that Medicaid is required to cover expenses when a resident is unable to pay.

The study found 5 percent of agreements instituted visiting hours for residents, also in violation of the federal law.

One of the things not mentioned in the study but is very disconcerting to many residents is the inclusion of an arbitration clause hidden in the admissions paperwork that waives the resident’s right to a jury trial if the resident gets abused or neglected.

The study and a consumer guide outlining the rights of residents are available online at nsclc.org.

Here is a sample Power of Attorney that anyone can print and use as long as it is notarized and signed properly.  This power of attorney does not authorize the POA to sign an arbitration agreement and prohibts the POA from waiving the signatory’s right to a jury trial.  This should help combat the hidden arbitration clauses that the nursing home industry hides in their admissions paperwork.

Buried within most admission contracts for nursing homes are unconscionable and hidden clauses requiring mandatory binding arbitration in case of a dispute. These clauses stack the deck against consumers and victims of nursing home abuse and neglect.  These hidden clauses force residents to sign away their rights before a dispute even arises, and denying them access to the courts, often the only place regular Americans can face powerful interests on a level playing field. 

The Arbitration Fairness Act of 2007 would secure citizens’ seventh amendment right to a trial by jury and allow consumers to get a fair opportunity.

In arbitration, consumers are forced into a private legal system that is stacked against regular Americans, where they must pay steep filing fees—often more than $750 just to file a case. These fees do not include the arbitrators’ hourly charges, which range from $200 to $500 per hour, often bringing the total cost of arbitration to tens of thousands of dollars for consumers.

While in arbitration, consumers’ fates are in the hands of a supposedly impartial arbitrator. However, the arbitrators are often biased in favor of businesses, since they will be repeat users of a particular arbitrator. Once an arbitrator reaches a decision, it is almost impossible to appeal and the arbitrators do not have to justify any of their findings.

The Arbitration Fairness Act of 2007 would eliminate these unfair contracts and preserve the right to a trial by jury—a pillar of our civil justice system.

We urge you to take action by telling your Senators and Representative to oppose binding mandatory arbitration clauses in consumers’ contracts by supporting the Arbitration Fairness Act of 2007.

Please go this website and fill out this form to fight mandatory arbitration

I saw this article written by a family member who failed to read the contract when admitting his mother to the nursing home.  When she was neglected and he wanted to remove her, the nursing home charged him extra money because the family did not provide one week’s notice!! Incredible.  Make sure you read every clause in the contract especially to see if there is an arbitration clause in the contract. If you see one, strike it out of the contract; you do not want to waive your right to a jury trial.  Below are excerpts from the article.

I sent my mother, Sarah, to ManorCare in Easton for physical therapy after she suffered a fractured right hip. On my interview to sign her contract, everything seemed in order. My mother did not receive the care I had hoped for and what ManorCare said would be performed. I informed the nursing home that I wanted to remove her.

They told me she needed a release from her doctor, which I obtained. As I was wheeling her out, an official from ManorCare stopped and told me I hadn’t given them a week’s notice and would be charged for an extra week, which was $1,757. They said it was stated in the contract.

Neither my wife nor I remember being told about the week’s notice at the time of signing the contract. We paid the bill but are not happy about it. My mother, who lives on a limited income, should get her money back.

 

Many nursing homes attempt to evade liability by inserting arbitration clauses in nursing home admission paperwork without telling the resident or their loved ones.  Unfortunately, many courts enforce these unconscionable agreements.

A son should be precluded from filing a wrongful-death suit against a nursing home where he had signed a binding arbitration agreement prior to admitting his father to the facility, the Supreme Judicial Court has ruled.

The son, a college-educated claims manager, argued that since his Superior Court complaint named a treating physician and other medical personnel who were not parties to the arbitration agreement, enforcing it would unfairly require him to address part of the case in court and part of it in arbitration.

But the SJC disagreed and reversed a Superior Court judge’s ruling after finding that nothing in the arbitration provision was procedurally or substantively unconscionable.

"[The son’s] failure to read the agreement ‘word-for-word’ makes no difference, as we have long held that, absent fraud, a party’s failure to read or understand a contract provision does not free him from its obligations," said Justice Robert J. Cordy, writing for the court.

Read More →

Although many courts enforce arbitration clauses in admissions paperwork, some clauses have not been enforced because the person who signed the arbitration agreement did not have legal authority or there was no agreement on who would arbitrate the case.

Denial of Arbitration–South Carolina

Fields v. Magnolia Place, 04-CP-42-555 (Feb. 7, 2005)

The Honorable Judge Roger L. Couch denied Defendant’s Motion to Compel Arbitration because signatory did not have legal authority to bind the resident, and that the arbitration provision was vague, indefinite, and lacking material terms.

 Benton v. Summit Place, Inc., 2004-CP-23-0267 (Nov. 17, 2004)  Here is Judge Hill Order denying Defendants’ Motion to Reconsider.

The Honorable Judge D. Garrison Hill denied Defendant’s Motion to Compel Arbitration because there was no mutual assent to arbitrate existed because the chosen arbitration forum is no longer available.

DETRA L. BRUNER, as next of kin of LEOLA BRUNER (DEPP), deceased,
Appellee, v. TIMBERLANE MANOR LIMITED PARTNERSHIP, and its successor
in interest, TIMBERLANE MANOR LIMITED LIABILITY COMPANY, d/b/a
GRACE LIVING CENTER, Appellants.

No. 103,028

SUPREME COURT OF OKLAHOMA

2006 OK 90; 2006 Okla. LEXIS 94

December 12, 2006, Decided

Detra L. Bruner filed suit against Grace Living Center, alleging that her mother’s death was caused by the nursing home’s negligent care. Grace Living Center filed a motion to dismiss or in the alternative to compel arbitration and stay the proceedings. The district court found that the nursing home care did not involve interstate commerce; the federal arbitration statutes are not applicable to the nursing home admission agreement; and, the binding arbitration provision in the nursing home admission form is unenforceable under § 1-1939(D) and (E) of the Oklahoma Nursing Home Care Act, 63 O.S.2001, §§

1-1901, et seq. The district court denied the motion to dismiss or in the alternative to compel arbitration. Grace Living Center appealed. This Court retained the appeal. Affirmed

SHARON OSTROFF, Individually and as Power of Attorney for Lillian Restine,

Plaintiff, v. ALTERRA HEALTHCARE CORPORATION, Defendant.

CIVIL ACTION NO. 05-6187

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

2006 U.S. Dist. LEXIS 50730

July 25, 2006, Decided

Sharon Ostroff, individually and as power of attorney for Lillian Restine, her mother, filed suit against Alterra Healthcare Corporation ("Alterra") for personal injuries suffered by Restine while she was a resident at an assisted living facility operated by Alterra. Defendant moved to compel arbitration pursuant to a Residency Agreement signed by plaintiff Ostroff. In an Order & Memorandum dated June 7, 2006, the Court denied defendant’s motion to compel arbitration. Ostroff v. Alterra Healthcare Corp., F. Supp. 2d , 2006 WL 1544390 (E.D. Pa. June 7, 2006). In that Order & Memorandum, the Court held that the Residency Agreement was a contract of adhesion and thus procedurally unconscionable. Id. at *5. The Court also ruled that the Agreement was substantively unconscionable, because it severely restricted discovery available to plaintiff n1 and reserved access to the courts for defendant while requiring plaintiff to arbitrate all disputes. Id. at *8. Because the arbitration clause was procedurally and substantively unconscionable, the Court refused to enforce it. Id. Defendant has now filed a Motion for Reconsideration and to Vacate that Order of June 7, 2006. For the reasons below, defendant’s motion is denied.