You see them everywhere \u2013 requirements that consumers go to an arbitration system instead of the courts.\u00a0 If you look in your car\u2019s manual, those arbitrations are mandatory, when you look at the fine print on your smart phones, they are there too.\u00a0 If you want the car, or the phone, you have to agree to give up your right to go to court and resolve disputes through an arbitration system set up by the companies.<\/p>\n
And while some may argue that these are bad practices, the cost to the consumer is financial.\u00a0 Yet, as these arbitration practices move into more and more consumer contracts, the consequences could be much more severe.<\/p>\n
According to a series written in the New York Times, nursing homes have begun to force residents into arbitration when a resident suffers harm from neglect or abuse.\u00a0 That\u2019s right, if an elderly person needs to be placed in a nursing home, he or she may have to give up their legal rights \u2013 or go somewhere else.<\/p>\n
Thus, if a nursing home resident is harmed by a nursing home employee, the resident ends up having a private arbitrator \u2013 chosen by the nursing home \u2013 hear the case.\u00a0 That\u2019s a huge conflict.<\/p>\n
Overturning a bad decision by an arbitrator borders on impossible \u2013 even if it\u2019s deadwrong.\u00a0 As one court noted, \u201ca court\u2019s conviction that the arbitrator has committed serious error\u201d is not enough to overturn the decision as long as the arbitrator \u201cis even arguably construing or applying the contract.\u201d<\/p>\n
Under these circumstances, an injured nursing home resident\u2019s chances of getting justice are slim to none.<\/p>\n
And without proper justice, the injured nursing home resident will suffer as critical basic needs go unmet. These may include the need for better quality care, health insurance co-payments, transportation or equipment costs, care not covered by insurance, or other help.<\/p>\n
The rest of us also suffer because if fewer claims get fully investigated, \u201cbad actors\u201d are not brought to light and harmful wrongdoing against vulnerable people is allowed to continue.\u00a0 And in what is right out of Kafka, there\u2019s no public record of private arbitration decisions, so no one can review the types of claims being brought against nursing homes and how they are decided.<\/p>\n
People who seek residency in a nursing home typically have little or no choice about where they go for the care they need, so refusing to sign such a contract \u2013 or even expressing reluctance to do so \u2013 is not a practical option.<\/p>\n
Nursing home residents are by definition vulnerable.\u00a0 The decision to enter a nursing home is fraught with emotion and often made under extreme time pressure.\u00a0 Yet when they do so, they must entrust the nursing home with their very safety.<\/p>\n
Given these circumstances, nursing homes should never pressure residents to give up their right to go to court.\u00a0 Yet this is exactly what is happening.<\/p>\n
And it is wrong.<\/p>\n
New York State agrees.\u00a0 Long ago, it amended the state law to ban forced arbitration clauses in nursing home contracts.<\/p>\n
But recent litigation is threatening this protection, with nursing homes claiming that a federal law (originally intended for business contracts) preempts New York\u2019s, blocking state lawmakers from protecting nursing home residents.<\/p>\n
At the national level, the situation is so problematic that the federal government is proposing to impose some restrictions on the practice.<\/p>\n
The bottom line is that forced arbitration agreements are all wrong for the nursing home setting.<\/p>\n
After all, if arbitration were beneficial for nursing home residents, why make it mandatory?Let residents (or their personal family representatives) decide voluntarily whether or not to choose it, on a case-by-case basis, after \u2013 not before \u2013 something really bad happens.<\/p>\n","protected":false},"excerpt":{"rendered":"
You see them everywhere \u2013 requirements that consumers go to an arbitration system instead of the courts.\u00a0 If you look in your car\u2019s manual, those arbitrations are mandatory, when you look at the fine print on your smart phones, they are there too.\u00a0 If you want the car, or the phone, you have to agree […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-1567","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/www.nypirg.org\/capitolperspective\/wp-json\/wp\/v2\/posts\/1567","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.nypirg.org\/capitolperspective\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.nypirg.org\/capitolperspective\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.nypirg.org\/capitolperspective\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.nypirg.org\/capitolperspective\/wp-json\/wp\/v2\/comments?post=1567"}],"version-history":[{"count":3,"href":"https:\/\/www.nypirg.org\/capitolperspective\/wp-json\/wp\/v2\/posts\/1567\/revisions"}],"predecessor-version":[{"id":1570,"href":"https:\/\/www.nypirg.org\/capitolperspective\/wp-json\/wp\/v2\/posts\/1567\/revisions\/1570"}],"wp:attachment":[{"href":"https:\/\/www.nypirg.org\/capitolperspective\/wp-json\/wp\/v2\/media?parent=1567"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.nypirg.org\/capitolperspective\/wp-json\/wp\/v2\/categories?post=1567"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.nypirg.org\/capitolperspective\/wp-json\/wp\/v2\/tags?post=1567"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}