Articles Posted in Nursing Home Legislation

Earlier last year, the current administration rolled back certain regulations that the Obama administration put into place regarding the issuance of Civil Money Penalties (CMPs) to nursing homes that were found to have provided inadequate care to residents. Essentially, the regulations allowed for the federal government to fine nursing homes that were not in compliance, including Maryland nursing homes.

Those in favor of the rollbacks claimed that the additional regulations took caregivers’ attention away from residents, requiring that they focus on meeting the regulatory framework set forth by the lawmakers. However, in reality, it seems as though the rollback of the previous regulations has merely allowed for nursing homes to act with impunity as it relates to the level of care they provide to residents.

According to a recent news article, 17 state attorneys general – including those in Washington, D.C. and Virginia – authored a letter to the Trump administration. The letter discusses the importance of senior care, noting that by 2060, the number of people dependent on skilled nursing facilities is expected to double. This means that one in three people will find themselves in a nursing home at some point in their life. Given the fact that about 35% of all nursing homes were cited for a violation of the quality of care being provided to residents, these figures are alarming to say the least.

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Tens of thousands of cases are filed in Maryland courts each year. To help the court system handle the large number of cases, procedural rules have been implemented to streamline the process and to ensure that only diligent plaintiffs with legally sound cases are permitted to have their cases heard by a judge or jury.

One of the major procedural rules that courts require plaintiffs to follow is that a case must be filed within a certain amount of time, as outlined in the jurisdiction’s statute of limitations. If a plaintiff fails to file a case before the applicable statute of limitations expires, the court will be left with little choice but to dismiss the case, leaving the plaintiff with no avenue of recovery.

Over the past decade, states have begun to enact stricter requirements for many personal injury cases, especially medical malpractice cases and nursing home abuse and neglect cases. Indeed, according to a recent news article, West Virginia lawmakers have recently drafted and passed a bill that makes filing lawsuits against nursing homes much more difficult. Under the new law, the state’s statute of limitations was reduced from two years to one year. In addition, cases against nursing home facilities can only be filed in the county in which the nursing home is physically located.

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Late last month, one lawmaker introduced the Protecting Access to Care Act, which, among other things, would limit certain damages awards to the victims of nursing home abuse and neglect. While the Act does not mention nursing home victims specifically, the broad changes proposed by the Act would, in effect, limit the availability of non-economic damages for nursing home abuse and neglect victims. It would also limit the amount of compensation nursing home abuse and neglect victims could receive for their pain and suffering.

The Act

According to one news source, a proponent of the Act claims that it will “throw blame out the window” and will allow for all involved parties to focus on how to prevent accidents rather than engage in post-accident litigation. The Act applies to anyone covered under Medicare, Medicaid, military health plans, and the Affordable Care Act, and caps damages against doctors, hospitals, and nursing homes in many situations. In addition, the Act would provide legal immunity to pharmaceutical companies whose products harm patients, so long as the product was FDA-approved.

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Over the past few decades, arbitration clauses have become ubiquitous in the contracts that residents (or their family members) must sign prior to being admitted into the nursing home. These arbitration clauses may act to prevent a nursing home resident or their family from pursuing any legal action in the court system against the nursing home. Instead, these claims are settled through an arbitration company that will hear both sides and issue a binding decision. Arbitration clauses are enforced without regard to the strength of the evidence, meaning that even the strongest cases of nursing home abuse and neglect may be prevented from ever reaching a courtroom.

The problem for nursing home residents and their families is that the nursing home selects the arbitration company in the pre-admission contract. As a result, the companies that are selected are potentially biased in favor of nursing homes. Additionally, the language of the arbitration clause is often buried deep in dense paragraphs, making it unlikely that potential residents or their family members will read and comprehend the rights they are giving up by signing the contract. This has led many arbitration contracts to be held to be invalid as a matter of law and also as a matter of good public policy.

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As this blog discussed in a post last month, the Centers for Medicare and Medicaid Services recently announced a new rule that would deny funding to any nursing home that includes a mandatory arbitration clause in its admission contract. Essentially, the new rule uses fiscal policy to discourage nursing homes from including arbitration clauses in their contracts. This means that abused or neglected nursing home residents will be able to use the court system – rather than a private, confidential, and often one-sided arbitration system – to resolve claims against nursing homes.

Some commentators suggest that the new rule may also lead to an overall increase in the level of care nursing homes offer to residents. According to one recent news article discussing the new rule and its potential implications across the nursing home industry, nursing homes will now be forced to deal with the claims against them in public courthouses rather than in confidential arbitration.

One of the reasons the nursing home industry favored arbitration for years was that the results of the arbitration – favorable or not – were not made a part of the public record. However, with fewer nursing homes including arbitration clauses in their admission contracts, the public will have a greater understanding of the types of claims that arise in nursing homes. This increased awareness, it is suggested, will result in nursing homes trying harder to avoid potential claims.

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Before a resident is admitted to a nursing home, a contract must be signed. The contract outlines both parties’ rights and responsibilities, as well as setting out some ground rules in the event that the resident or their family sues the nursing home. Over the past decade, more and more nursing homes have included arbitration clauses in these contracts, forcing residents to resolve all disputes through a third-party arbitration company rather than use the court system.

In these contracts, the forum of the arbitration is often chosen by the nursing home, and the outcomes of disagreements have historically favored nursing homes. However, in a very important new rule announced by the Department of Health and Human Services, nursing homes that require residents and their families to submit to arbitration rather than the court system will no longer receive federal funding. It is estimated that this new rule will affect 1.5 million nursing home residents nationwide.

Since the nursing home industry has benefited greatly from these arbitration clauses, the industry has reacted negatively to the new announcement. In fact, one spokesperson attacked the Department of Health and Human Services’ legal authority to implement such a rule, saying that the rule “clearly exceeds” the agency’s authority. He also claimed that the rule was “wholly unnecessary to protect residents’ health and safety.”

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