NAELA Urges CMS to Ban Pre-Dispute Nursing Home Arbitration Clauses

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Proposed Rule Could Undermine Last Remaining Defense for Individuals Seeking Re-Establishment of Constitutional Right to Trial

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Elder abuse is unfortunately an endemic issue in America, whether it occurs at home by a family member or at a long-term care facility.

An NPR article published this month, “Suing a Nursing Home Could Get Easier Under Proposed Rules” by Ina Jaffe, brings to light the issue of elder abuse in long-term care facilities and how pre-dispute arbitration agreements protect these facilities from being sued in case something goes awry while a patient is in their care.

In response to the Center for Medicare and Medicaid Services’ (CMS) proposal to allow for pre-dispute arbitration as long as certain conditions were met, the National Academy of Elder Law Attorneys (NAELA) sent a letter to the agency urging them to ban these provisions and any other waivers of the right to trial before a dispute has arisen in long-term care facility agreements. At present, the only means to defend against these provisions after a dispute has arisen has been the unconscionability of the contract provision. By blessing the use of these provisions, CMS would be undermining the only means left for these patients to regain their constitutional right to trial.

"Elder abuse is unfortunately an endemic issue in America, whether it occurs at home by a family member or at a long-term care facility. Sadly, pre-dispute arbitration provisions have been used to keep wrongdoing at facilities out of the public record and have prevented many vulnerable seniors from seeing the justice they deserve," said NAELA President Shirley B. Whitenack, Esq., CAP.

To receive a free NAELA brochure: “Questions and Answers When Looking for an Elder and Special Needs Law Attorney,” contact Communications Associate Abby Matienzo by email [amatienzo(at)naela(dot)org] or phone at 703-942-5711 #230.

Find an Elder and Special Needs Law attorney in your area using NAELA’s Member Directory.

About NAELA
Members of the National Academy of Elder Law Attorneys (NAELA) are attorneys who are experienced and trained in working with the legal problems of aging Americans and individuals of all ages with disabilities. Established in 1987, NAELA is a non-profit association that assists lawyers, bar organizations and others. The mission of NAELA is to establish NAELA members as the premier providers of legal advocacy, guidance and services to enhance the lives of people with special needs and people as they age. NAELA currently has members across the United States, Canada, Australia and the United Kingdom. For more information, visit NAELA.org.

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Abby Matienzo, Communications Associate
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