Nursing Homes Patients Regain Access to the Courts

After November 28, 2016, when you place yourself or a loved one in a nursing home you will no longer be required to sign away your legal rights.

The Centers for Medicare & Medicaid Services (within the U.S. Department of Health and Human Services) recently issued a rule stating that nursing homes which receive federal funding cannot require future residents to agree to settle disputes through binding arbitration rather than a lawsuit.

Pre-dispute arbitration clauses in nursing home contracts shield nursing homes from liability for claims involving neglect, abuse, harassment, assault, and wrongful death. Arbitration is a secretive and privatized justice system that favors corporations. A 2009 study commissioned by the American Health Care Association, which represents most nursing homes, found the average awards after arbitration were 35 percent lower than if the plaintiff had gone to court.

This is the first major overhaul of the federal nursing home policy in 25 years.

The new rule also includes expanded regulations regarding food, medical treatment, and personnel requirements for long-term care facilities. Nursing homes are now required to provide “nourishing, palatable” food for residents and develop a care plan for each resident within 48 hours of their admission to the facility.

Consumer protection groups hope that the rule is a step toward ending pre-dispute arbitration clauses used by other corporations and institutions that receive government support, including banks.

For the Wells Fargo Bank customers who had other accounts opened in their names, the pre-dispute arbitration clauses they signed when they opened their real accounts were deemed to apply to the fraudulent accounts as well, so the defrauded customers have been denied access to the courts.

To learn more about the new rule visit http://www.nytimes.com/topic/subject/nursing-homes or http://www.npr.org/sections/thetwo-way/2016/09/29/495918132/new-rule-preserves-patients-rights-to-sue-nursing-homes-in-court