Holding Nursing Homes Accountable

There are currently over 1.4 million Americans living in nursing homes. When people enter a nursing home, they expect to receive the utmost quality care. However, if for any reason that care is anything less than adequate, there are not reasonable safeguards in place to hold nursing homes truly accountable to patients.

In an effort to prevent nursing home residents from suing for resident rights violations, abuse or neglect, nursing homes ask residents or their families to sign agreements prior to admission that include binding pre-dispute arbitration provisions. The arbitration clauses in these contracts require residents and their families to settle disputes through private arbitration rather than in a court of law in front of a jury. Most arbitration clauses are hidden in contracts so that consumers will not pay attention to the fact they are waiving important, constitutional rights to a jury, the right to discovery, and the right to a written record. However, instead of simply banning these pre-dispute clauses, the Centers for Medicare and Medicaid Services allows them as long as the nursing homes take steps to explain and disclose the clauses. Unfortunately, even if nursing homes explain these clauses it does not mean that residents and their families will fully understand prior to signing. Forced arbitration shields corporations from liability, but at the same time denies justice to patients, meaning that business wins and consumers lose.

In July 2015, the Centers for Medicare and Medicaid Services (CMS) issued a proposed rule to revise requirements for nursing homes, including specific requirements relating to the use of these pre-dispute arbitration clauses. In October 2015, 27 members of Congress sent a letter to CMS criticizing CMS’s proposed rule, stating it would not adequately protect residents in nursing home facilities. The letter called on CMS to issue a final rule; this ensured that residents entering these agreements will do so only on a voluntary and informed basis after a dispute arises instead of prior to a dispute. This would give residents the choice to use arbitration as an alternative dispute resolution rather than a forced resolution. Further, the congressional members wanted to ensure that signing the agreement would not be a requirement for admittance, but simply an option to handle unresolved disputes.

In July 2016, 32 members of Congress sent another letter to CMS that commended many provisions of the rule, but highlighted critical issues that must be fixed before the final version to protect our country’s most vulnerable population.  The letter applauded CMS for recognizing the problems with these pre-dispute arbitration clauses, but said CMS was not doing enough. The letter asked to explicitly prohibit these clauses from nursing home agreements for many reasons. CMS cannot expect residents and their families to make such decisions during their initial admission to a nursing home. Nursing homes must be held accountable for the care they provide to our nation’s elderly community.

The final version of the new regulations for nursing homes is expected to arrive in September.

 

 

 

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