Changes in Nursing Home Patient Rights in 2018

One area of law that we often get many questions about is the quality of care a loved one receives in a nursing home or rehabilitation center.  The concerns appear to be valid.  As the New York Times recently reported, since 2013 federal records reveal that nearly 40% of nursing homes have been cited for serious violations of patient care.  The Times article notes that “common citations include failing to protect residents from avoidable accidents, neglect, mistreatment and bedsores.”  Sadly, the article also concludes that the government is not doing its part to appropriately monitor and enforce safety guidelines designed to protect patients. 

Reductions in Fines for Violations of Patient Care

Since taking office in January 2018, the administration of President Donald Trump has taken numerous steps to scale back government regulation of various industries.  In the case of nursing home care, this is seen in the form of drastically reducing monetary fines for patient care violations, first implemented under the former administration of President Barack Obama.  As Janet Wells, a consultant for the California Advocates for Nursing Home Reform worries, these reductions in penalties come as “some egregious violations and injuries to residents are being penalized — finally — at a level that gets the industry’s attention and isn’t just the cost of doing business.”

An example of this can be seen locally at the recently closed Lincoln Manor nursing home in Decatur, Illinois.  In September 2016, a Lincoln Manor patient died after the facility failed “to monitor and treat the wound of a patient whose implanted pain-medication pump gradually slipped over eight days through a ruptured suture and protruded from her abdomen.”  Following an investigation, the Centers for Medicare and Medicaid Services leveled a fine totaling $282,954 for this breach of care.  Under the new guidelines announced by the Trump Administration, the fine for this gross violation of basic care would have been capped at less than $21,000.

Reductions in Access to Our Courts

This reduction in enforcement is not only seen at the governmental regulatory level but also in the very manner in which individual patients can enforce their rights in a court of law.  As National Public Radio (NPR) reported this past August, the Trump Administration recently rescinded an Obama Administration ban on arbitration clauses in nursing home contracts.   Under the new guidelines, nursing homes could now require patients to agree to mandatory arbitration as a condition of receiving care at their facilities.

As the NPR report notes, these mandatory arbitration clauses make it more difficult to sue for negligence or abuse because they “make it almost impossible for nursing home residents to get their day in court.”  Under mandatory arbitration agreements, parties consent to their claim being heard by a private judge who uses “a different set of rules that can be more restrictive than civil court.”  As the story notes, studies show that arbitration awarded damages are often drastically lower than damages awarded by a jury of one’s peers.

These mandatory arbitration clauses also have a chilling effect on the ability to learn about a nursing home’s conduct and make an informed decision as to whether it is the best facility for a member of one’s family.  Kelly Bagby, a senior attorney with the AARP, notes that arbitration proceedings are often private and more secretive than proceedings in open court.  As a result, adverse findings against the nursing home can be hidden from public view.  As Bagby concludes: these arbitration provisions are “also bad for everyone else whose victimization could’ve been stopped if they’d have known that this was a bad facility.”

The Bottom Line

When a loved one is placed in nursing home or rehabilitative care, the demands on the family can be overwhelming.  Families must navigate the complexities of insurance, doctors and medications while helping get a loved one settled into a new environment.  You should not have to worry about whether the government is doing its part to protect the patient’s safety, rights and remedies under the law.

While these new federal guidelines can make it more difficult to police nursing home conduct, families can do their part by thoroughly researching a potential home to make sure it offers quality care.  We recommend searching the internet for any negative articles about a facility or asking for references from other patients or families who are familiar with the level care provided.