Across the United States, 31 senators are taking a stand for nursing home resident rights, and are calling on our President to protect our nation’s elderly population. In recent years, the quality of care and practices in U.S. nursing homes has been increasingly criticized. At the same time, nursing homes have been allowed to change their contracts in order to prohibit or limit what nursing home residents and their families can do if things go wrong.
Joining forces, dozens of senators have submitted letters to the director of the Centers for Medicare & Medicaid Services (CMS) calling for action and a rethinking of current and projected regulations. What does all this mean for nursing home residents and their families? Read on to learn more, or contact Brown & Brothers to explore your legal rights or potential nursing home abuse or neglect case.
Nursing Home Resident Rights: What are we Fighting For?
To better understand the significance of 31 senators joining forces to stop dangerous practices and regulations, we must understand exactly what is happening and what lawmakers are fighting for. Consider the following:
- Across the U.S., many nursing homes are adding forced arbitration clauses to their contracts. A forced arbitration clause prohibits residents from filing a lawsuit, joining a class action, or taking more strict arbitration measures if a legal issue arises. Instead, legal issues would be resolved based on the arbitration clause of the contract, which often identifies an arbitration company hired by the nursing home.
- Most forced arbitration clauses include language identifying a specific arbitrator or arbitration company that will manage disputes. Often times, these parties are paid by the facility, and are biased or one-sided resulting in favorable outcomes for the facility in many cases.
- Forced arbitration protects nursing homes by keeping legal disputes out of the public eye. Arbitration hearings are private and confidential, and thus protect the facility from bad ratings or records that could affect the public’s perception.
- In 2016, CMS moved to overhaul regulations with a massive update that would require long-term care (LTC) facilities to stop using forced arbitration clauses if they wanted to accept Medicaid or Medicare funding. LTC lobbyists at the American Health Care Association (AHCA) sued, and a hold was placed on the new regulations.
- In June 2017, the legal fight against AHCA concerning the anti-arbitration rule was abandoned by the Trump administration. New leaders at CMS have since stated that they would formally roll back the regulation. In truth, the new projected regulations demand nursing homes be more forthcoming with information about arbitration clauses, but really is questionable in terms of preserving resident rights.
Even if regulations are revised or rolled back, it should be noted that the effects likely would only apply to new contracts and would not change protections or policies for the millions of people already living in nursing homes around the country.
Senators Taking Action
The morning of August 7, 2017, 31 senators took action to preserve the legal rights of nursing home residents and their families. The letter included strong language about the importance of protecting America’s most vulnerable citizens, upholding Constitutional rights (Sixth and Seventh Amendments), and maintaining accountability for LTC’s when wrongdoing occurs. Part of the letter read as follows:
“Forced arbitration clauses in nursing home agreements stack the deck against residents and their families who face a wide range of potential harms, including physical abuse and neglect, sexual assault, and even wrongful death at the hands of those working in and managing long-term care facilities,” reads the letter. “These clauses prevent many of our country’s most vulnerable individuals from seeking justice in a court of law, and instead funnel all types of legal claims, no matter how egregious, into a privatized dispute resolution system that is often biased toward the nursing home. As a result, victims and their families are frequently denied any accountability for clear instances of wrongdoing.”
Forced arbitration strips nursing home residents and their loved ones of their Constitutional right to have their day in court. Forced arbitration is protecting nursing homes from the legal process, accountability, and development of a negative record by resolving serious legal matters behind closed doors. Another point made by the senators is the fact that with forced arbitration, hearings are not disclosed as a public record, so many LTC’s may be guilty of Medicaid or Medicare fraud, but these acts are being kept out of the public or legal eye due to the private nature of arbitration.
Furthermore, forced arbitration makes it possible for even the most negligent or malicious actions of nursing home employees to go unchecked by the court system. One example used in the letter to CMS was that of a woman from Alabama who, upon her death, toxicology found over 20 times the recommended dose of diabetes medication in her body. The family accused the nursing home of being negligent in supervising medications, but the facility forced the matter into arbitration. There was no justice for this needless loss of life.
Fighting for Your Legal Rights
It can be very difficult to understand all the legal terminology in contracts. Forced arbitration clauses are often hidden deep within the “fine print” leaving you and your loved ones at a loss for legal protections if issues arise. Nursing home resident rights are crucial to their overall wellbeing and deserve protection.
If you have a loved one in a nursing home and are concerned about preserving their legal rights, there are ways to get help. There are numerous advocacy groups in Texas, and all across the U.S. that are valuable resources for families. Contact your local Adult Protective Services (APS) or Ombudsman to find out more. You can also contact Medicare or the Administration on Aging, which offer federal and state information.
You can also contact our team at Brown & Brothers to discuss nursing home resident rights. At Brown & Brothers, our nursing home abuse and neglect attorneys are dedicated to preserving and defending the rights of nursing home residents. To find out more about how we can help you, fill out our online form for a free consultation.