A recent rule enacted to give claims of elder abuse the ability to be heard in court rather than being relegated to arbitration has recently met a wall in the form of a ruling by a U.S. district court judge.
Rule That Gave Victims of Nursing Abuse Their Day in Court
In late September, the Centers for Medicare and Medicaid Services (CMS) passed a rule that actually prohibited nursing homes that receive federal funding from requiring residents to resolve disputes in arbitration rather than in the courtroom.
The relegating of disputes to arbitration often came as a shock to those claiming elder abuse because of many nursing homes actually suppressed policies about disputes going to arbitration in mounds of admissions paperwork and in small print.
If the admissions papers were signed, any future claims of abuse were automatically sent to arbitration.
Why is Arbitration Worse Than The Courtroom?
Essentially, arbitration was designed to offer a streamlined and cost-cutting option for settling legal issues. In arbitration, decisions are rarely made public.
While both parties in a matter being settled in a courtroom have absolutely no input on who the assigned judge will be for their case, in arbitration they can select an arbiter from a pool of candidates.
Other differences between the two include:
- Arbitration being a relatively quicker process than litigation
- Both sides can be represented by attorneys during arbitration but their roles are very limited
- There’s no opportunity to appeal during arbitration
U.S. District Judge Blocks Rule; Says Make it Legal
In early November, U.S. District Court Judge Michael Mills of Mississippi said that the rule actually went beyond the CMS’s authority.
That’s not to say that he is against the rule, though. In his November 7 order, he said that the rule did appear to be based on “sound public policy.”
Judge Mills went on to write that nursing home residents with conditions like dementia do not have the ability to fully understand what an arbitration agreement includes.
He further wrote that the U.S. Congress has the ultimate authority to determine if arbitration documents need to be a part of the nursing home admissions process.
In other words, if the CMS wants their rule to stick, they’re going to have to jump through a few more legislative hoops to get it done.
If You Suspect Someone of Being a Victim of Elder Abuse, Call The Fitzgerald Law Firm
We’ll keep an eye on how the CMS attempts to get congressional approval for their rule.
Elder abuse can come in various forms, including physical and emotional abuse, sexual abuse, abandonment, and neglect. If someone you know has been a victim of elder abuse, get in touch with us here at The Fitzgerald Law Firm.
There’s never a charge for the first consultation, so call us at 800-323-9900.