Over the past five years, around 6,500 nursing homes (four out of every ten homes) have been cited for at least one major violation. Relaxing enforcement and making it harder for victims to bring lawsuits may benefit the nursing home industry, but these changes could also be putting our elder population at risk.
GAO Report on Nursing Home Abuse
The United States Government Accountability Office (GAO) is an independent watchdog agency that works for Congress, and investigates how the federal government spends American tax dollars. In February of 2018, GAO published a Report finding that older Americans and people with disabilities in assisted living facilities can be vulnerable to abuse, neglect, or exploitation. The GAO noted that most states could not inform them how many, or what type, of critical incidents had occurred in these facilities. Three states, the GAO observed, do not even monitor unexpected or unexplained deaths in nursing homes. As a result of these findings, the GAO recommended that CMS take action to improve reporting of critical incidents.
Recent Rules Allow for Binding Arbitration in Nursing Home Contracts
It is now standard practice for home care contracts to include arbitration clauses with class waivers. When a patient is admitted to a nursing home, they may be faced with a large volume of paperwork, and somewhere buried in the stack may be a clause where the patient is asked to waive their right to sue in a court of law, in favor of a pre-selected arbitrator, who is usually paid by the nursing home. If a nursing home injury should occur, the first thing a nursing home lawyer will have to consider is whether the family or patient signed an arbitration agreement upon being admitted.
These kinds of arbitration agreements had been prohibited in the sunset of the Obama administration. The Obama-era CMS promulgated a rule that prevented long-term care facilities from entering into these kinds of binding arbitration agreements. However, in June of 2017, CMS proposed
a new and very different rule, removing the prohibition on binding arbitration agreements, among other things. The rule has not yet been adopted, and it is unclear how things will play out when that happens. It is not clear whether homes will be able to turn away patients who refuse to waive their right to sue in court for nursing home personal injury.
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Despite the fact that arbitration agreements are common today, patients who have suffered abuse or neglect still have legal recourse—either through arbitration, or on appeal to the court system. Nursing home lawsuits can be filed by the resident, or on their behalf by a family member or loved one. If you have lost a family member and suspect nursing home abuse or neglect was the cause, you may be able to file a wrongful death lawsuit on their behalf.