New Rule Guarantees Rights of Family to Sue Nursing Homes

Nursing home abuse affects many Americans across the United States. Financial, emotional, physical, and other forms of abuse can significantly harm an elder’s quality of life and leave families with few avenues for recourse. A new federal ruling passed down from the Centers for Medicare & Medicaid Services may help reduce instances of abuse and neglect in any long-term care facilities that accept Medicaid or Medicare funding.

In a possible effort to minimize liability risks, many long-term care facilities incorporate binding arbitration agreements into their patient contracts. Our Attorney General in Minnesota, Lori Swanson, is a vocal critic of these mandatory clauses because they force patients and families to settle all disputes in private. Attorneys who specialize in consumer rights estimate that up to half of all senior caretaking facilities in the state enforce these agreements.

Publicly, the facility might never admit an instance of abuse, neglect, or malpractice. Starting November 28, 2016, however, facilities can no longer include mandatory arbitration clauses in their contracts.

The Problem With Pre-Dispute Arbitration in Nursing Home Care

Patients and families who sign contracts containing arbitration clauses agree to resolve any future conflicts using a private arbitration process. Families may give up their right to take the center to court when they sign.

Proponents of arbitration proceedings highlight the expedited nature of the process. When applied appropriately, patients and caretaking facilities can use the arbitration process to reach an amenable conclusion without the necessity of a lengthy court case. Unfortunately, forced arbitration does not always produce favorable results for patients and their families. Mandatory arbitration can:

• Threaten the accuracy of nursing home abuse reports. Without public records, states and the nation cannot protect patient rights and force health care facilities to improve their services.

• Encourage facilities to downplay instances of abuse, neglect, and substandard services. Unfortunately, many decisions in nursing home facilities come down to cost. If only a handful of patients report problems, the facility can use the private arbitration process to settle a dispute for a lower amount and to avoid enacting costly changes throughout the facility.

• Lower patient quality of life and increase the risk of death. Legal concerns aside, these are facilities that fail to address problems directly affect the health and well-being of the patients in their care.

How the New Rule May Protect Your Rights

The Centers for Medicare & Medicaid Services, an agency within the U.S. Department of Health and Human Services, released the contents of the new rule in late September. When it goes into effect at the end of November, it will ban all facilities that accept Medicare and Medicaid funding from forcing patients and their families to resolve conflicts through arbitration. In the Minnesota, the rule will affect 376 nursing homes containing almost 30,000 beds.

If both a facility and the patient in question agree to arbitration proceedings, they may still use arbitration as a valid form of conflict resolution. However, this ruling prevents health care facilities from forcing clients to use arbitration over a formal court proceeding.

You can protect your rights as this new rule goes into effect in the following ways:

• Explore the changes that the new rule creates for nursing homes.
• Read through your current contract. The changes to arbitration proceedings do not apply to contracts signed prior to the effective date in November. Renegotiate your contract to remove mandatory arbitration language, if applicable.
• Speak with a legal advocate. An attorney who specializes in nursing home care can help you understand and negotiate with a long-term care facility following these federal changes. Always consult an attorney if you believe your loved one suffered at the hands of nursing home employees.

The changes outlined in the new rule should improve overall conditions at nursing home facilities. These improved regulations serve as a major step toward consistent, high-quality care at senior care facilities in Minnesota and across the country.