Caregivers can sue nursing homes, long-term care facilities

They say American society is a litigious one, and god willing, it will continue to be so in the foreseeable future. A new rule, which guarantees the rights of patients and their relatives – also known as caregivers – to sue long-term care facilities in court as opposed to settling disputes in arbitration, was recently released by the Centers for Medicare & Medicaid Services (CMS). Beginning in November, the rule will ban the more than 15,000 facilities that receive money from Medicare or Medicaid from requiring residents to sign nursing home contracts including so-called pre-dispute binding arbitration clauses.

Needless to say that this development is not mean to promote frivolous lawsuits but to improve the care and safety of about 1.5 million residents in long-term care facilities – as well as to ensure the peace of mind of their caregivers who, as Andy Slavitt, Acting Administrator and Kate Goodrich, M.D., M.H.S., Director, Center for Clinical Standards & Quality, CMS wrote in a blog post, “want to know that (their) family member will be safe, properly cared for, and receive the highest quality of care.” They added that the agency “received and reviewed nearly 10,000 comments from the public” on the new rules since they were proposed as part of the White House Conference on Aging in July 2015.

Not everybody was on board, though. The American Health Care Association was against the rule change from the get-go. “AHCA is extremely disappointed that CMS included in the final rule a provision banning all pre-dispute arbitration agreements,” Mark Parkinson, president and CEO of the association, said in a statement. It is worth noting here that facilities and residents can still agree to voluntarily go to arbitration whenever a dispute crops up. However, “these agreements will need to be clearly explained to residents, including the understanding that these arbitration agreements are voluntary, and… should not prevent or discourage residents and families from talking to authorities about quality of care concerns.”

Other changes finalized in the rule include the following:

·         Ensuring that the staff is properly trained on caring for residents with dementia and in the prevention of elder abuse.

·         Ensuring that the health of residents is considered when making decisions on the kinds and levels of staffing a facility needs.

·         Ensuring that the staff has the right skill sets and competencies to provide person-oriented care to residents. Care plans developed for residents will take into consideration their goals of care and preferences.

·         Improving care planning.

·         Giving dietitians and therapy providers the authority to write orders in their expertise areas when a physician delegates the responsibility and state licensing laws permit.

·         Updating the facility’s infection prevention and control program.

Related: How do you know if a nursing home passes muster or not?