Frail nursing home residents and their frazzled family members are routinely asked to sign a stack of denselyprinted documents at the time of admission, without adequate time to review them or to consult with counsel, and without realizing that the agreements may include forced arbitration provisions. Arbitration requires residents to waive their fundamental constitutional right to a jury trial, even if they later suffer serious injury, medical malpractice, or wrongful death. Because arbitration is secret and there is no public record of the outcome, it keeps cases of malpractice, abuse and neglect out of the public eye, effectively denying residents and their families access to justice. A new federal rule from Centers for Medicare and Medicaid Services, effective September 16, 2019, provides that:
Although the new rule does not impose an outright ban on arbitration agreements in nursing homes, it does affirm the right of residents to just say no to arbitration clauses in admission agreements. Elder advocates should seize this opportunity to educate residents, their families and representatives, and the public about these critical rights.
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