Blog

New Rule May Deny Your Rights to Sue a Nursing Home

Posted by Scot D. Goldberg | Aug 07, 2017 | 0 Comments

nursing home abuse

If you have a family member – especially one of your parents – who lives in a nursing home, hopefully you never will have the need to file a lawsuit against them for negligent or abusive treatment.

But under a newly-proposed rule change by the Centers for Medicare and Medicaid Services, (CMS), you wouldn't even have that legal right available to you as an option.

Last fall, prior to the election of President Trump, the CMS enlisted a rule stating that any nursing home that receives federal funding – which means most of them – would not be allowed to force a person into mandatory arbitration to settle any legal disputes. (Prior to that time, nursing home residents or their guardian were required to sign contracts that stripped them of any rights that had to file a lawsuit against a nursing home.)

But right now, the CMS, which is now being run by the newly-appointed Trump regime, wants to rescind  rule and go back to forcing people into arbitration.

Arbitration is a negotiation in which a professional arbitrator, who supposedly has no connection to either party involved, listens to both sides of a story and then hands down a ruling which the consumer is forced to accept. However, when you consider that the arbitrator's fee is just about always paid for by the business entity that owns the nursing home, you can see why this is a major problem for consumers.

Mandatory arbitration clauses are used in a lot of contractual agreements. They are in place to protect the interests of big business, and to reduce or eliminate their exposure to a potentially costly lawsuit. You've likely signed something like this yourself if you have a contract with your credit card company, phone or internet provider, mortgage lender and a host of other financial services providers.

These types of clauses are hidden in the small print toward the bottom of the agreement, and essentially give you a ‘take it or leave it' option. Sign this, or we have no agreement. And in an instant, you've given away your legal and constitutional right to take your case to court for a trial – you're bound to using an arbitrator, like it or not.

Attorney Sheba Abraham is a Partner at our law firm, Goldberg Noone, LLC, and is well versed in nursing home negligence and abuse, and other related legal fields. “If the CMS reverses this ruling, it will be devastating to those seeking justice against a nursing home, especially the elderly”, she points out.

Many formidable consumer advocacy organizations are lining up in opposition to the proposed change, including the AARP, the U.S. Chamber of Commerce and others. There has been a group formed, called FAN for Fair Arbitration Now, and it has been reported they are considering their legal options regarding filing a lawsuit to stop the CMS from reverting back to the previous rule. There also are those who feel that the CMS has no legal authority to revise the rule, especially if they are attempting to do so based solely on the fact that they are now under control of the Republican party, or ‘under new management' essentially.

“Changing this contractual clause simply because ‘there's a new sheriff in town' and they're trying to keep large corporations and insurance companies from being open to lawsuits is not a sufficient reason”, says Attorney Abraham. “Many prominent consumer protection organizations feel the CMS does not have the legal authority to amend the contractual language – it will be very interesting to see how this plays out.”

In a column in the Los Angeles Times, a reporter calls the potential action by the CMS “an unfair practice that favors the interests of business over those of consumers”, and goes on to say, “in the case of nursing homes, (this) involves some of the most vulnerable members of society.” Public Citizen, the consumer advocacy group, has not held back on their position. Their president calls the possible back-pedaling a “heartless and vile act.”

Nursing home abuse and negligent nursing home care are very real, and happen quite frequently in Southwest Florida. Hopefully the Centers for Medicare and Medicaid Services will not be able to, (again), take away your rights to a fair trial in the event you or a loved one are victimized.

About the Author

Scot D. Goldberg

Local People. Local Practice. Local Knowledge. Scot Goldberg is a founding partner of the Goldberg Law Firm. See his attorney profile for more information.

Comments

There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

FREE CONSULTATION

People who hire a good attorney greatly increase the chances of winning their case. If your personal legal situation has you wondering if you need a lawyer or not, give us a call at 239-461-5508. We can sit down with you, no charge, to talk about your situation, and help you make that decision. You may decide you could use our firm on your side.

OUR PROMISE

We, at The Goldberg Law Firm, are dedicated to standing up for the rights and protection of victims of negligence and to seeing justice done. We will continue to direct our combined knowledge, determination, and drive to the limits for each and every one of our clients. The results are record-breaking jury verdicts, real relationships with our clients, and legislative breakthroughs.

TESTIMONIALS

Copyright © 2017 Goldberg Noone, LLC

The information contained on this website is for informational purposes only and is not, nor it is intended to be, a source of solicitation or legal advice. Use of this website does not create, nor does it establish an attorney/client relationship. Individuals should not rely on the information contained in this website when making decisions regarding legal matters, and should consult with a qualified attorney for legal advice. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. We look forward to talking with you and reviewing related documents in order to come to a full understanding of what happened, how it occurred, and all those who may have been at fault.

Menu