Nursing homes are regulated by the Federal government and in most instances, these regulations make sense in terms of safety. However, things go wrong in nursing homes on a regular basis and sometimes they go horribly wrong. For decades, nursing homes were allowed to handle claims against them for allegations of wrongdoing in complete secrecy from the public. They did so by forcing every person who needed to go into a nursing home to sign an agreement upon admission that any dispute as to anything that happened in the home had to be decided in a private arbitration, not disclosed to the public.
Essentially that took away the basic right we have in our society to file claims in our courts and have them decided by juries. This right should apply to everyone, particularly our vulnerable elders and disabled, who may be unable to speak for themselves. If a nursing home resident was hurt, neglected, assaulted or his or her death was hastened by the actions or failures of nursing home personnel, the family could only make a claim that was decided behind closed doors, no jury, no light shed on wrongdoing. Then things changed for the better.
In 2016, after reviewing years of data, The Centers For Medicare and Medicaid Services created a new regulation, holding nursing homes accountable for their wrongdoing by banishing forced arbitration. Their basis for doing so was that extensive data showed how handling claims in secrecy was detrimental to the health and safety of residents. For the many advocates for elder and disabled people in long term care, this was a moment of triumph.
I personally worked with a older client we’ll call “Isabel” who had been sexually abused in a large nursing home by a staff member. Her attorney was able to file a lawsuit and have the option of taking the case to a jury trial. The matter fairly settled out of court under threat of exposure at trial of the home’s bad hire of its employee. Had Isabel been subject to forced arbitration in secrecy, with an arbitrator chosen by the nursing home, the outcome would likely have been quite different. That is a direct example of how banning forced arbitration benefitted this client. The assailant was fired and Isabel was able to move out of the place where the assault occurred with her settlement funds. She had no financial means to do so without those funds.
The right to have any nursing home claim decided in court by a jury was stripped away in 2019, in an ugly rollback to the past dark period of secrecy. If Isabel’s sexual assault by the nursing home worker who attacked her happened today, she would be forced into arbitration on her claim. And she would not likely fare as well as she did with an attorney who could take her case to court. Without a fair settlement, Isabel would also be forced to stay indefinitely in the very same lax nursing home that hired the predatory worker who hurt her. She hated it there after her attack and I helped her move out with the aid of her daughter and her settlement monies. Low-income people like Isabel have few choices without legal cases to protect their rights and vindicate wrongdoing.
Now, the way nursing homes are regulated needs serious reform. Reform costs tax dollars. With a dysfunctional legislature in Washington, we don’t see that happening anytime soon.
If you have a loved one who must live in a nursing home because they have no choice due to being on Medicaid and they can’t afford a different living situation, be cautious about what you sign. Arbitration agreements take away any resident’s right to a jury trial if something goes wrong and they get hurt. Some nursing homes also try to force you to sign an agreement that you will be financially responsible for an elder when you cannot be forced into that. Never sign that kind of paperwork. It’s illegal. And if there is a way to avoid the part of any contract that says all disputes must go to binding arbitration (no appeal, no trial of any case) do avoid it.
Our healthcare system, including nursing homes is extremely complex. If you are trying to understand it and are struggling with questions, reach out to us at AgingParents.com. We offer guidance and advice to relieve your distress. Call for an appointment 866-962-4464 today.
Carolyn Rosenblatt, RN, Attorney, AgingParents.com.