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On Aging with Dr. Roger Branch Sr.: Long term care and arbitration
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Dr. Roger Branch Sr.

Attention to issues on long-term care was interrupted by topics stirred up by the holidays. Well, I am back.

It is not news that many seniors spend time in long-term care facilities ranging from assisted living to nursing homes and on-site hospice centers. My earlier column dealt with financing and planning. In most of these, seniors receive consistently good care, but there are exceptions. I have seen cases of neglect and abuse among my family and friends.

Why do these things happen? The first issue is staffing problems. Cost control leads to the employment of people who are not health care professionals. They are under-prepared and overwhelmed by workloads and the health conditions of patients. At best, some of us old folks are difficult, cantankerous. Many object to being there at all but have no choice. Many object to the scheduled routines of daily life and to "being ordered around" by others.

Many residents/patients suffer from Alzheimer's disease or other types of dementia. Dealing with them is challenging. My mother was a case in point. She did not like to be ordered about. She did not like to be bathed, a strange development for a woman who had been a "neat freak" for 85 years. A heavy-handed attempt to force her to be bathed resulted in a big rip in the thin skin of her forearm. As is usually the case, honey would have worked a lot better than vinegar with her.

The most effective protection against neglect and abuse is frequent visits by family and friends complete with careful observation and questions to patient and staff. However, such visitors cannot be there all of the time and some patients have no family or none nearby. Through contracts with regional Area Agencies on Aging, ombudsman organizations monitor conditions in nursing homes, but their visits are occasional due to caseload. So, bad things do happen.

Some of the lawyers whose TV commercials surround evening news reports tout their effectiveness in protecting neglected or abused patients. However, their claims might be overstated. Patients often cannot protest for themselves and many do not have family or friends to advocate for them. It is not easy to produce evidence that will stand up in court. So, litigation is not always a viable threat to prevent neglect and abuse.

A recent trend has further eroded the power of litigation. It is the use of binding arbitration to avoid lawsuits. This contractual device evolved from the desire of large — usually corporate — businesses to avoid long, expensive court proceedings to settle financial disputes. As part of contracted exchanges, they agree to allow potential disputes to be settled by binding arbitration through a third-party arbitrator or panel of arbitration. Typically, staff attorneys or attorneys on retainer work out the details. There is less disruption to the basic business operations. The amount of financial resources tied up or threatened is much smaller.

Increasingly, long-term care facilities are owned and operated by corporations — large ones —–_ some national systems. Some of them write binding arbitration agreements into the contracts for patient care. So what? It means that no attorney for a patient can take them to court and make them pay.

A device for settling financial disputes that works reasonably well when both parties are of equal power becomes problematic when one side lacks necessary knowledge and resources. The corporation has its team of attorneys who know how this system works. Elders or responsible family members might not understand what binding arbitration means. If an issues emerges, who will make a case for them before the arbitrator? Many nursing home patients are on Medicaid, by definition rather poor. They don't have resources to hire attorneys and there is limited financial reward for any attorney who cannot look for a favorable court settlement.

It is important for seniors and others to understand binding arbitration and how it limits the possibility for dealing with harm through legal action in the court system. Perhaps it makes no difference. Corporate providers might be totally humane and ethical, unlikely to do harm without redress. It might not be possible to find a facility that does not require binding arbitration in the contract. Those that are owned and operated by religious groups or local people are less likely to require it. Being informed and shopping around is always wise.


Roger G. Branch Sr. is professor emeritus of sociology at Georgia Southern University and is a retired pastor.

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