Great news for families with loved ones in nursing homes or long-term care facilities. A new rule has been issued by the Department of Health and Human Services that will allow for patients in these facilities to file a lawsuit if something goes wrong. This is a drastic departure from what has been the status quo. Traditionally, most nursing home facilities require patients and their families to sign a contract that states any dispute must be resolved quietly through forced arbitration. The arbitration process is designed to keep costs down but it also keeps things quiet. Now, victims will have the opportunity to go to the traditional route by filing a lawsuit. This is fantastic news for any patients and their families that have been frustrated by the system.
In arbitration, both sides hire an attorney and the case is heard by an arbitrator who is typically a retired judge or an attorney with extensive experience. There is no jury and the proceedings are completely private. Both sides present information to the arbitrator and then the arbitrator asks questions until they have reached a conclusion. At this point they will enter a decision. With forced and binding arbitration, whatever the arbitrator decides is final. This can be problematic because you cannot appeal. In a trial, if one party is not satisfied with the decision or feels that something was done to infringe upon their rights or there was bias against them, an appeal can be made and the case can be heard by a new judge. This is not true of arbitration. If an arbitrator is biased or something is done incorrectly during the proceedings, there is typically no way to appeal and the decision will stand.
Preventing forced arbitration clauses in contracts is an important way to ensure that the elderly and their families have all options available to them and can take advantage of their full legal rights. This ruling is effective November, 2016. However, not everyone will be impacted by it. Nursing homes and facilities that do not accept Medicare or Medicaid do not need to abide by this new rule. Additionally, it does not change any existing contracts but will impact new ones. This is important for you to know because if you signed a contract in August, for example, you may still be under a forced arbitration clause. However, if you were to move your loved one to a new facility, their contracts should be under the new rule which would allow you to file a lawsuit in the event of a problem.