Nursing homes easier to sue

A recent ruling by an agency within the Health and Human Services Department found that nursing homes can no longer resolve disputes via arbitration if they receive federal funding.

This would affect homes with 1.5 million residents, according to the New York Times.

"Today's rules are a major step forward to improve the care and safety of the nearly 1.5 million residents in the more than 15,000 long-term care facilities that participate in the Medicare and Medicaid programs," CMS acting administrator Andy Slavitt said of the change to the west Virginia.

With this ruling comes new protections set to go into effect in November, including safety and quality of care disputes (which were largely left out of public view in clauses in nursing home contracts).

On the one hand, the nursing home industry states that arbitration is a cost-effective alternative to court and that more lawsuits could increase costs and close homes; they also believe this authority is an overstep on the part of the agency.

"AHCA is extremely disappointed that CMS included in the final rule a provision banning all pre-dispute arbitration agreements," said Mark Parkinson, the president of the American Health Care Association, in a statement. "That provision clearly exceeds CMS's statutory authority and is wholly unnecessary to protect residents' health and safety.

On the other hand, government officials and elderly care advocates suggest that it could hide slip-ups in nursing homes that they would rather not reveal, like wrongdoing.

Officials in 16 states and the District of Columbia moved for the change, one of the most significant changes to long-term facilities in more than two decades, according to the west Virginia record."The sad reality is that today too many Americans must choose between forfeiting their legal rights and getting adequate medical care," Senator Patrick Leahy, a Democrat of Vermont, said in a statement Wednesday.

Consumerist reported that nursing homes and other long-term care facilities use forced arbitration contracts to prevent residents from bringing legal action against homes in court.

Nursing homes that currently accept Medicare or Medicaid can no longer do such things, as part of an overhaul by the Center for Medicare and Medicaid Services "of consumer protections at long-term care facilities," stated Consumerist.

"We are requiring that facilities must not enter into an agreement for binding arbitration with a resident or their representative until after a dispute arises between the parties," reads the rule. "Thus, we are prohibiting the use of pre-dispute binding arbitration agreements."

This body also found in response to the concerns that they were overstepping their authority that regulators can put limits on arbitration agreements.

Attorney Rusty Webb told the West Virginia Record that arbitration, while cheaper, faster and considered more fair to the consumer, should still be an option in nursing homes.

American Tort Reform Association's Tiger Joyce said that these changes could put unfair pressure onto an already-struggling industry, pushing up costs because of lawsuits and making nursing homes more inaccessible.

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