The nursing home industry is fighting a new federal rule that would have forced some of their most pressing problems out of the shadows and into public view.

Last fall, the Department of Health and Human Services issued a rule barring nursing homes that receive federal funds from requiring residents to resolve disputes through private arbitration, rather than in court. The rule would affect 15,000 nursing homes across the country that receive billions in taxpayer money through Medicare and Medicaid.

It has become increasingly common for nursing homes to require new residents to sign contracts that include a clause requiring them to settle any disputes with them through arbitration. Unlike an open court proceeding, arbitration is conducted behind closed doors, and any damage award to the resident is typically less than what a jury might award for the injury and harms caused by the nursing home neglect.  These arbitration clauses are often contained in the fine print of nursing home contracts, and they are generally not negotiable.

Supporters of the new rule, including officials in 16 states and the District of Columbia, argued it was necessary because the arbitration clauses had the effect of keeping prospective residents and their families in the dark about which nursing homes had the worst records of resident complaints and injury.

The rule was set to take effect on Nov. 28, but two weeks prior to that a federal judge in Mississippi granted a request from a nursing home industry lobbying group to block its enforcement. Then last month, HHS announced it would not enforce the rule until and unless the judge’s order was lifted. Now, especially in light of the administration change in Washington, the fate of the arbitration ban is in serious doubt.

It is most unfortunate, because these arbitration clauses strip some of our most vulnerable citizens of an important avenue for recourse, and they lessen the incentive for nursing home operators to maintain safe living conditions for seniors. A 2015 investigation by The New York Times that examined records from 25,000 nursing home arbitrations uncovered disturbing cases of elder abuse and neglect that had been hidden from public view.

The good news is that brave individuals across the country are fighting these arbitration clauses with some success. In 2015, the Kentucky Supreme Court ruled that the arbitration clauses invoked in three nursing home wrongful death cases were not enforceable, and the U.S. Supreme Court is set to review the decision this year. Similar cases have arisen around the U.S., including in Minnesota and Texas.

If you or a loved one has been injured in a nursing home, don’t let the fine print of your contract stop you from seeking help. You could challenge that arbitration clause and have your day in court. Contact the experienced attorneys in the Sommers Schwartz Medical Malpractice Litigation Group today to review your case.

Matthew Curtis

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Matthew Curtis

Matthew Curtis is a senior shareholder and member of the Board of Directors at Sommers Schwartz, P.C. For the past 30 years, he has successfully litigated complex personal injury and medical malpractice cases throughout Michigan, and across the United States.