Fortunately, the federal Centers for Medicare and Medicaid Services (CMS) has been paying attention and has enacted a new rule to protect patient’s rights by prohibiting nursing homes from including an arbitration agreement clause in their pre-admission's paperwork; signing an agreement that included this language meant that patients or family members were unwittingly giving up their right to sue if they believe that the nursing home was responsible for injuries or the patient's death. Keep in mind however, that this rule applies only to those facilities that accept Medicare and Medicaid. Nor would the rule prohibit a resident from voluntarily signing a binding arbitration agreement after a dispute arose if both parties agreed to its terms.
The patent unfairness of the practice to include such clauses in admission's paperwork because obvious following the murder of Elizabeth Barrow, 100, by Laura Laura Lundquist, 97, her nursing home roommate who had been diagnosed with dementia, delusions, anxiety disorder, depression and paranoia. Ms. Lundquist is alleged to have strangled and suffocated Elizabeth Barrow by placing a plastic shopping bag over her head.
Ms. Barrow's son was barred until recently from taking the nursing home to court because his mother’s contract with the facility contained an arbitration clause that forced any dispute, even one over wrongful death, into private arbitration. Sadly, Ms. Barrow’s son had requested that his mother’s roommate be moved to a different room after he observed Lundquist's hostility toward his mother supposedly because of her popularity with other residents. The nursing home failed to act on his request despite staff notes in Lundquist's file that stated that she was clearly “a danger to herself and others”.
Elder Law attorneys as well as other patient advocates see this action by CMS as a real boon for the disabled and their families. After all, most people with a loved one in need of a nursing home are more focused on the quality of care their loved ones will likely received rather than taking the time to understand every nuance the admission paperwork contains. Before this rule was enacted however, the problem was that even if the signer were savvy enough to request the language be removed, such a request might mean that your loved one was refused admission. This "take it or leave it" attitude made a bad situation even worse.
“Clauses embedded in the fine print of nursing home admissions contracts have pushed disputes about safety and the quality of care out of public view,” the New York Times wrote in a recent article entitled “U.S. Just Made It a Lot Less Difficult to Sue Nursing Homes.” “With its decision, [CMS] has restored a fundamental right of millions of elderly Americans across the country: their day in court.”
Unfortunately, the nursing home industry has hired attorneys of their own to fight the new rule. They claim that without the protection this clause provides, the new rule will trigger more lawsuits that could increase costs and force some homes to close. Wow, I thought that better quality of care was all that was needed to reduce claims of neglect not preempting a patient's legal rights. Mark Parkinson, the president and chief executive of the American Health Care Association, said that the change “clearly exceeds” CMS’s statutory authority.
While the rule could be challenged in court, for now, it's scheduled to take effect on November 28, 2016, affecting all future nursing home admissions. That means that admission paperwork with arbitration agreement clause signed before this date will still be enforceable.
Reference: NY Times (Sept. 28, 2016) “U.S. Just Made It a Lot Less Difficult to Sue Nursing Homes.” and NY Times (February 21, 2016) “Pivotal Nursing Home Suit Raises a Simple Question: Who Signed the Contract?”