Pivotal Nursing Home Suit Raises a Simple Question: Who Signed the Contract? – The New York Times

I’ve written over the years about the dangers of forced arbitration. (See Class Dismissed: Concepcion and the End of Class Arbitration). Now, more than ever, nursing home arbitration clauses are harming consumers. Over the last few years, as the New York Times reports “it has become increasingly difficult to apply for a credit card, use a cellphone, get cable or Internet service, or shop online without agreeing to private arbitration. The same applies to getting a job, renting a car or placing a relative in a nursing home.”

Corporations are increasingly filing – and winning – legal motions to force plaintiffs in federal class actions out of the courts and into private arbitration hearings. In arbitration, plaintiffs must pursue claims as individuals and in private proceedings. These same agreements are now commonly found in nursing home contracts.

Arbitration clauses have proliferated over the last 10 years as companies have added them to tens of millions of contracts for things as diverse as cellphone service, credit cards and student loans. Nursing homes in particular have embraced the clauses, which are often buried in complex contracts that are difficult to navigate, especially for elderly people with dwindling mental acuity or their relatives, who can be emotionally vulnerable when admitting a parent to a home.

State regulators are concerned because the secretive nature of arbitration can obscure patterns of wrongdoing from prospective residents and their families. Recently, officials in 16 states and the District of Columbia urged the federal government to deny Medicaid and Medicare money to nursing homes that use the clauses. Between 2010 and 2014, hundreds of cases of elder abuse, neglect and wrongful death ended up in arbitration, according to an examination by The New York Times of 25,000 arbitration records and interviews with arbitrators, judges and plaintiffs.

Judges have consistently upheld the clauses, The Times found, regardless of whether the people signing them understood what they were forfeiting. It is the most basic principle of contract law: Once a contract is signed, judges have ruled, it is legally binding.

Now, in nursing home cases, simple principles of contract law are being used to throw out forced arbitration clauses. Despite efforts to try to ban these clauses, some facilities still demand that a resident sign away their right to legal protections in order to get the care they need. These arbitration clauses can be dangerous to residents’ rights. If you need help fighting an arbitration clause in a nursing home contract or you have a loved one who was injured, absued or neglected, contact us today. 

via Pivotal Nursing Home Suit Raises a Simple Question: Who Signed the Contract? – The New York Times.