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Tell the Legislature to Protect Seniors from Forced Arbitration

September 2, 2015

Few in our society are as fragile and defenseless as seniors, particularly those in long-term care facilities. This is the reason why a proposed change to Medicare and Medicaid regulations–one that would outlaw forced arbitration as a precondition of entry into such a facility–is so important. Civil justice blog ThePopTort drew our attention to this proposition, which was published on the Federal Register and is accepting comments from the public through the middle of September. It’s important to speak up for those who may lack the ability to speak for themselves and to encourage lawmakers to keep the courthouse doors open to seniors.

We’ve covered forced arbitration (also known as binding or mandatory arbitration) before, but it’s worth explaining again. It’s a system that has become the standard in relationships between individuals and corporations–banks, credit card companies, telecommunications companies, gyms, Sony, Ticketmaster, Starbucks, and more–in which consumers sign away their rights to a jury trial if something goes wrong in favor of out-of-court mediation.

Forced arbitration is almost always in companies’ best interests; it eliminates the possibility of a sympathetic jury of one’s peers, it avoids unfavorable news coverage, and its proceedings are usually overseen by a mediator chosen by the corporation. As we’ve pointed out before, the deck is often stacked against the private citizen in cases such as these.

It’s a simultaneously mind-boggling and mundane thought–that people have simply signed away their rights to sue companies and organizations whose products or services they use every day.  This is why the idea of forced arbitration in nursing homes and other long-term care facilities seems so malevolent. These are dangerous places, where mistakes may have fatal consequences. It shouldn’t be the case that the families of those harmed through no fault of their own should be prohibited from accessing the civil justice system and having their case heard in open court. After all, the right to a jury trial is so important that it is explained (very clearly and unambiguously) in the United States Constitution as a fundamental American right.

According to the investigative journalism organization ProPublica, about 118,000 “deficiencies” have been cited against about 15,000 long-term care homes since the beginning of 2011. Of course many of these may be for very minor infractions, but one of the most dangerous is known as an “elopement,” which occurs when a resident of one of these homes simply wanders away due to inadequate supervision. As ProPublica points out, a search for the term “elope” turns up about 950 individual inspection reports–and it’s worth mentioning that’s only the word “elope,” not to mention similar words like “wander” or “vacate” or “exit” or “leave without supervision.”

Researchers have estimated that about 31 percent of nursing home residents with dementia elope at least once, and this has led to many deaths and injuries (including being hit by cars or freezing to death). This is not to mention the residents who die from drowning in their own bathtubs, or from falling out of bed, or from inappropriately administered medication, or from bedsores. Each of these cases is completely avoidable through nothing more than increased care and vigilance. Accidents will, of course, happen–but they don’t have to happen on nearly this scale.

Please take a few moments to sign this petition at Change.org–or to submit a formal comment to legislators encouraging them to do away with mandatory arbitration in long-term care facilities.

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