Historically, federal-funded nursing homes have forced patients and their relatives to sign pre-dispute arbitration agreements prior to admission. By signing these documents, patients and their families were giving up their right to sue in the event of negligence, abuse or other harm committed by staff.
Under the previous system of private arbitration, claims of wrongful death, elder abuse, financial exploitation and sexual harassment never saw a courtroom, essentially stripping the basic rights afforded to patients and their families.
A new rule, passed by The Centers for Medicare and Medicaid Services (CMS), promises to give new protections to more than 1.5 million nursing home residents and their families. In late September of this year, the agency banned the enforcement of pre-dispute arbitration agreements in the 15,000 long-term care facilities that participate in the Medicare and Medicaid programs. Now, when a claim arises, residents or their families will have the right to file a personal injury lawsuit, although voluntary arbitration is still available.
Improvements in care, safety & consumer protections
With this new decision, the CMS has restored a fundamental right of nursing home residents throughout the nation – their day in court. The rule is part of a larger, over-arching transformation of policy and procedures in assisted living centers. As part of an effort to set high standards of quality care and safety for elders in these facilities, the CMS is reevaluating staff competency and skill sets in nursing homes, re-vamping its infection and control program, and enhancing training on caring with seniors with dementia.
Considering that elder abuse rates are on the rise, many advocates are applauding these new rules, which mark the first comprehensive update to CMS policy in more than 25 years.
The new policy, which is slated to go into effect this month, has not been welcomed by the nursing home industry. Critics argue that arbitration clauses have saved the government millions of dollars in legal fees, and that by allowing lawsuits to be filed, funds may dwindle forcing some facilities to shut down.
Legal remedies for nursing home abuse
Many families, who are already under pressure to find a suitable facility for an elder loved one, do not read the fine print when signing nursing home admission forms. Unfortunately, under the previous clauses, victims were not able to hold negligent parties accountable for their actions, and many were forced to settle privately for unfair amounts. Research has shown that claims settled through arbitration generally receive 35 percent lower payouts compared to those litigated in court.
Louisiana elder abuse attorney Bart Bernard assists families whose loved ones have been mistreated or abused in a nursing home or assisted living facility. If you suspect substandard care or neglect, speak with an attorney who can evaluate the case and determine if you have a right to compensation. For a free legal consult, please call today.
- NPR, New Rule Preserves Patients’ Rights To Sue Nursing Homes In Court http://www.npr.org/sections/thetwo-way/2016/09/29/495918132/new-rule-preserves-patients-rights-to-sue-nursing-homes-in-court
- Centers for Medicare and Medicaid Service, CMS finalizes improvements in care, safety, and consumer protections for long-term care facility residents https://www.cms.gov/Newsroom/MediaReleaseDatabase/Press-releases/2016-Press-releases-items/2016-09-28.html