The federal government announced today huge changes to nursing home entrance agreements that will affect every elder in this country. These changes preserve the right for nursing residents to sue the long-term care facility for negligence and other causes of action. This link to NPR's article "New Rule Preserves Patients' Rights To Sue Nursing Homes In Court" contains the full story.
Why is this change so important?
Upon admission to a long-term care facility, the patient and/or their family must sign a very long entrance package, often exceeding 50 pages. As part of the package, the facility will always include a binding arbitration provision. Binding arbitration involves the submission of a dispute to a neutral party who hears the case and makes a decision. Arbitration takes the place of a trial before a judge or jury, which essentially gives up the right to go to court and even appeal the arbitration decision. Instead of a normal civil lawsuit with either a judge or jury, the patient's right to sue is severely limited. Signing away this right typically meant a much lower settlement for the resident in lawsuits for negligence and other malfeasance.
While many nursing homes give good care to our elders, the ability to sue for damages is an important part of any relationship. As part of our elder law practice, we see clients suffer all kinds of untold damages due to nursing home neglect and the ability to sue for damages is an important way to keep the facility answerable for their misconduct. As part of our life care planning law practice, we would review our client's entrance agreements and cross them out, but not all facilities would allow the resident to move in without signing the arbitration agreement.
Ultimately, this is great work by the Centers for Medicaid and Medicare Services (CMS) and they should be commended for their work in protecting our most vulnerable population. This rule goes into effect November 28, 2016, so until then, please cross out all arbitration provisions you see when you or your loved one moves into a long-term care facility.
Please see this post updated on October 19, 2016.