After 25 years without changes in basic rules, the nursing home industry is finally being forced to reveal hidden wrongs that happen to residents.
Until now, consumers were required to sign arbitration agreements when they were admitted to a nursing home. Taking a loved one to a nursing home can be on short notice, under pressure and with great anxiety. People rarely considered the effect of being required to sign these one-sided agreements.
Unbeknownst to the average person, these agreements mandated that if anything went wrong in a nursing home, the family could not have their day in court to seek justice. Instead these grievances could be dealt with only in arbitrations, hidden from the public. Private arbitration took the place of a public trial in open court. Results were kept secret.
That has finally changed along with a lot of other very important rules. The lawyers who could not file cases in court for serious harm to a resident, even murder of a resident while in a nursing home wanted families to be able to seek justice the way everyone else does: by a regular lawsuit and a jury. Now they can.
Nursing homes are a necessary part of the health care system. Ideally rehabilitation takes place there in what is supposed to be a more relaxed setting than a hospital. Some people must remain in nursing homes for the rest of their days, due to many factors. These should not be dangerous places, but some are.
We do not have separate nursing homes for elderly criminals who have served their time. We do not have separate nursing homes for disruptive or aggressive residents who suffer from mental illness or dementia with behavior problems. Everyone is under the same roof and many nursing homes have not provided enough trained staff to properly care for the most difficult residents there. New rules now say they must properly train and staff their facilities.
The Center For Medicare and Medicaid Services (CMS) has issued these revised rules, much to the relief of advocates. The improved rules affect over 15,000 long term care homes that accept Medicare and Medicaid across the country. In order to receive payment from Medicare and Medicaid (most of the income in these homes), all homes will have to step up to better standards or they will lose money.
How does this affect the life of anyone with an aging parent or other loved one? It means that if your family member has to go to a nursing home, they are likely to be safer than before these rules came into being. Rules alone are not a guarantee of safety for anyone. And the improved rules do not mandate staff to patient ratios, a better way to ensure safety. But, no one placing a loved one in a nursing home can be forced into signing an agreement to arbitrate a grievance there, losing the right to a day in court, as before. My hope is that you never have such a grievance.
The best takeaway here is to watch over your loved one daily if you can, particularly in any nursing home. Entrusting an aging parent or other to the care of a home does not free the family from the need for vigilance.
By Carolyn Rosenblatt, RN, Elder Law Attorney
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