Closing Loopholes in the Fight for Elder Rights
Their day in court
In many states, nursing home contracts include a clause that prevents families who file abuse and neglect lawsuits from taking the matter to court. Instead, these cases are often handled in arbitration. However, Medicaid and Medicare have just passed a reform that is going to allow those victims and their families to have their day in court. Under this new reform, nursing homes and other residential facilities will be required to allow residents and their families to take abuse and neglect lawsuits before a judge and jury. These facilities are still able to offer arbitration as an option in their contracts, but it is no longer compulsory.
This radical change is welcome news to many, especially those who have experienced the process of filing an abuse or neglect lawsuit against a nursing home as well as others who have been fighting for the rights of nursing home residents. The Democratic Senator of Vermont, Patrick Leahy is one such individual. He had this to say; "The sad reality is that today too many Americans must choose between forfeiting their legal rights and getting adequate medical care." Senator Leahy has often voted in support of Medicare and Medicaid patients.
However, some have taken issue with it. Namely, executives within the nursing home industry who feel that this reform has had a negative impact on their administration. Mike Parkinson, the president and chief executive of the trade group American Health Care Association, called this change in legislature "wholly unnecessary" and claimed that it "clearly exceeds" his agency's authority.
This reform will go into effect on November 28th, 2016.
Arbitration isn't enough
These days, arbitration clauses are found not only in nursing home agreements but also in employment contracts, credit card agreements and many other types of agreements. One reason that they are so common is because they prevent a lawsuit from going to court. With arbitration, instead of due process before a judge and jury, the two parties (for example, a representative from the nursing home facility and the family of the abused or neglected resident) take their case before a mutual third party, an arbiter. This blocks many families from getting the justice they deserve.
This lax method of prosecuting is often extremely beneficial for the nursing homes and health care organizations. Unlike a trial, circumstances and matters of hearsay hold weight in arbitration, not just hard evidence. Both sides present their arguments and the arbiter makes a decision based not only on the evidence presented, but also any hearsay, unverifiable facts as well as the opinions of the arbiter.
When a resident has been abused or neglected, they and their family have the right to bring actual evidence before a judge and jury that will hopefully not only bring justice for the family, but also call the facility's actions into question, thereby further improving the long term health care system currently in place.