Moving Into a Nursing Home? You Will Soon Have More Rights

Finding a long-term care facility can be a stressful process. Among the issues to consider are not only the cost and quality of care, but what recourse you have if something goes wrong.

Until now, some long-term care facilities have included arbitration clauses in the contracts that residents and their families are required to sign when admitted. If a conflict arose, even regarding severe neglect, abuse or death, nursing-home residents or their loved ones were blocked from taking the facility to court.

But as of November 28, consumers will have that right. That’s when a new rule from the U.S. Department of Health and Human Services will bar pre-dispute arbitration clauses in nursing-home contracts.

It’s a decision that George Slover, senior policy counsel at Consumers Union, the policy and mobilization arm of Consumer Reports, calls “a tremendous advance in helping ensure effective protections for nursing home residents.”

Mandatory arbitration agreements have become widespread, affecting everything from bank account agreements to employee contracts. Consumer advocates are working on numerous fronts to restrict or end the practice.

“This is a particularly vulnerable consumer population—the elderly and disabled confined to nursing homes,” Slover says. “This rule will help ensure that nursing homes are held accountable when there is neglect and abuse, and it will help give nursing homes the right incentives to make sure they are taking care of their residents like they should be.”

Families and seniors don’t always think about the kind of recourse they might have if harm comes their way. They are often already at a stressful moment in their lives when they’re looking for a long-term facility, says Bruce Katzen, an attorney with the law firm Kluger, Kaplan, Silverman, Katzen & Levine who represents seniors in financial abuse cases. Some seniors move into nursing homes after an injury or illness, when scrutinizing a contract isn’t necessarily practical.

While the new rule, which was issued by the Centers for Medicare and Medicaid Services (CMS), will empower seniors and their families, the nursing-home industry is objecting to it.

In a statement, Mark Parkinson, the CEO of the American Health Care Association said that the mandatory arbitration ban “clearly exceeds CMS's statutory authority and is wholly unnecessary to protect residents' health and safety.”

Know Your Rights

If you or a loved one lives in a nursing home or plans to move into one, consider these suggestions:

Review all the changes. The arbitration ban is just one of many new regulations issued by the CMS in a 700-page report, which includes new standards for everything from infection control to nutrition. Slover says the overhaul will benefit all nursing- home residents. Family members or residents may want to talk with their nursing-home staff about how the new rules will be implemented. New information for residents is also expected to become available from CMS.

Check your current contract. Because the arbitration rule doesn’t apply to contracts signed before November 28, 2016, current nursing-home residents or their families should review their contract. If it includes a pre-dispute arbitration clause, ask the facility to renegotiate or remove the terms, Katzen recommends. If the facility refuses, a resident could decide to move to a new nursing home, though that often isn’t practical or advisable for many seniors. But if enough residents make the request, that may help convince the facility to comply.

Arbitration is still an option. If you or a family member enters a nursing home after November 28, the facility may still ask you to agree to arbitration in the event of a dispute. The difference now is that consumers would have the right to make that decision after a dispute arises, when the matter at stake is more clear and more focused rather than having their hands tied from the start, Slover says.

Consult an attorney. An attorney can help residents and their families compare the costs and benefits of binding arbitration versus a lawsuit or informally resolving the problem. An attorney will also advise consumers on the fairness of the particular arbitration agreement and can recommend changes you could ask for. Being able to negotiate the terms of an arbitration agreement in this way is far more favorable than being forced to sign one already included in the contract, says Slover. Once you sign an arbitration agreement, though, you are bound by it, so it makes sense to consult with an attorney first and consider all ways to resolve the problem.

While arbitration is often cited as being less costly than a lawsuit, that’s not always true for consumers, says Katzen. Arbitration is effectively a private legal system that adds fees and costs that consumers won’t face in a trial, such as administrative fees paid to the American Arbitration Association, according to the nonprofit consumer advocacy group Public Citizen.

Consider your right to share information. Arbitration cases and outcomes are often required to be kept confidential, which could limit your ability to publicly disclose the problems you have with a facility. If you want to share information about alleged abuse or neglect with others, arbitration may hinder your ability to do so.

Remember the ombudsman. The Administration on Aging runs the Long-term Care Ombudsmen Program to help residents resolve issues with their facilities. Each state has its own ombudsman who handles disputes on quality of care and alleged abuse, among other issues.

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