Elderly may be blocked from suing nursing homes for neglect, abuse

Credit: Lois Norder

Credit: Lois Norder

The Roswell woman's plea was hand-written. Please, she wrote to federal officials, ban mandatory binding arbitration clauses in nursing home contracts.

The woman wrote that she wanted to file a lawsuit after her husband died in January in a skilled nursing facility. "He died from sepsis caused by a bedsore that was discovered too late and then improperly managed," her letter says.

But an attorney she consulted told her she couldn't have her day in court. The nursing home contract she had signed on her husband's behalf included a binding arbitration clause. Her complaint would have to be settled by negotiation through a arbitrator, not a judge or jury.

Under a rule that was supposed to take effect last November, nursing home residents could not be forced to settle complaints by arbitration. Instead, residents or their families would have the right to sue. The rule, finalized after years of studies, was aimed at making sure that nursing facilities would be held accountable if the elderly are abused, neglected, sexually assaulted or suffer wrongful deaths.

But the nursing home industry filed its own lawsuit, contending that the federal agency that proposed the rule didn't have authority to impose such a ban. A judge then issued a preliminary injunction stopping the rule from taking effect.

Rather than fight the suit, in June the federal Centers for Medicare and Medicaid Services announced it would revise the rule to reduce what it called an unnecessary burden on nursing homes.

A ban on binding arbitration agreements will be dropped. Instead, nursing homes must make sure that if nursing home residents are required to sign such agreements, the language of such agreements must be in plain language, the proposal states.

Monday was the deadline for the public to comment on the rule, and hundreds of individuals and organizations weighed in. Comments can be viewed at http://www.regulations.gov

In support of the revision, a nonprofit long-term care facility in West Palm Beach, Florida, said that the government should consider the costs of providing quality nursing home care and not deny seniors the right to enter voluntary pre-dispute arbitration agreements. The threat of arbitrary and excessive jury verdicts does not improve nonprofit care, wrote Keith Myers, president of MorseLife Health System.

The for-profit nursing home industry and other business groups, including the U.S. Chamber of Commerce, also back the revised rule. They argue that lawsuits are a costly and time-consuming way of settling disputes.

CMS agreed with those arguments, in proposing its revision. It added in a public notice: "We are also concerned about the effect that judicial litigation could have on residents who continue to reside in the same facility. Judicial actions are necessarily adversarial. Arbitrations may be less adversarial...we believe it is likely to place less strain on the relationship between the facility and the residents (and their families)."

Most of the commenters, though, urged the federal agency to stick with the original rule banning forced arbitration as a condition for admission to a nursing home. Long-term care ombudsmen from several states, AARP, elder care associations and consumer groups all urged returning to the original rule.

Some of the most compelling comments were from individuals describing their family's experiences.

One Georgia woman, who didn't include her name in comments to the agency, wrote about what happened to her mother at a Tucker nursing home. "My mother was not ambulatory and required assistance to go to the bathroom or to change her diaper," she wrote. "One day upon arriving at the nursing home we found that in lieu of changing her diaper after she had soiled herself, the CNA put a second diaper on top of the soiled diaper and tried to hide the odor with an abundance of talcum/baby powder." No action was taken against the certified nurse assistant, she wrote.

Another Atlanta area resident wrote that a facility never notified her after her 98-year-old mother suffered a fall. "Luckily the next day I was visiting her and she told me about the fall, because she was in so much pain," her daughter wrote. "Then I took her to the hospital. She was there several days, then on to a rehab hospital." Her comment: "You just cannot take away the power of threatened lawsuits from families whose loved ones has been mistreated."

The Roswell woman, Cheryl L. Bishof, said she didn't recall the binding arbitration clause in the contract she signed when her husband, John, was admitted to the nursing facility. But she said that her husband had been sick for many years, and each time he needed long-term care it was under duress.

"Sometimes the hospital will say you have to find a place in three days," she told the AJC.

"I can remember every time I went through all those papers and I was by myself, I thought, this is like signing for a house...You don't know what you are signing."

Transparency about the arbitration requirements is not enough, she said, because people often have little choice about nursing facilities.

The rule would apply to facilities that receive Medicare or Medicaid money, as most homes do.

CMS is now reviewing the comments, a spokeswoman told the AJC. The agency has three years from publication of the proposed rule to issue a final rule, though the spokeswoman said that the final rule may publish earlier.

The AJC is interested in hearing from readers about their experiences with nursing homes and assisted living facilities. Email us at doctors@ajc.com