The decision to place an ailing relative or loved one into a nursing home is fraught with guilt and uncertainty. In addition, it seems that the paperwork is never-ending. Nursing home administrators have the upper hand in the enrollment process, often requiring seniors and their families to sign away their rights and agree to certain restrictions or conditions before allowing them to join the community. One of the biggest concerns family members have is the dreaded arbitration clause. Now, with federal changes, families may finally have more options when it comes to suing nursing homes for mistreatment or negligence.

Why Arbitration Was In Place

Arbitration in a legal context is intended to reduce litigation and save clients money on representation and judgments. Traditionally, an arbitration clause is attached to a nursing home contract to ensure that the family of residents cannot sue the nursing home in the case of negligence or incompetence without the case first going through an arbitrator, who works for the nursing home.

The Negatives Of The Clause

Between 2010-2014, there were hundreds of abuse/neglect cases that ended up in arbitration instead of criminal court. Aside from being questionable morally, this trend toward settling an abuse case through in-house arbitration takes advantage of the confidential nature of arbitration. Too often, such abuse cases are buried in the legal paperwork and guilty parties remain untouched and prone to commit abuse again.

Although it is often touted as less expensive than a trial, this is not completely accurate. While arbitration is less expensive for the nursing home, individuals may find that the cost of arbitration is more than they can afford. During a court trial, many lawyers defer payment until after the court proceedings. Meanwhile, arbitrators often require payment up front. This can leave clients scrambling to come up with the money to pursue a resolution.

In addition to problems with personal affordability and accountability, only a small number of cases are settled in arbitration. Of the 1,173 claims recently reviewed in an arbitration study, only 6 were settled during an arbitrated session and 73%(856) were settled during a trial. Furthermore, arbitration settlements were slow in coming, some three hundred days longer than court decisions.

Moving Away From This System

With the obvious disadvantages of the clause, it should be no surprise that nursing homes are being pushed by clients and the government to move away from forced arbitration. Now, nursing home administrators are required to make the paperwork transparent for clients and their families. Nursing homes are no longer allowed to require potential residents to sign arbitration clauses.

Now the government has expanded protection for all nursing home residents. An agency within the department of Health and Human services recently issued a rule that says that nursing homes which receive Medicare or Medicaid funding cannot force residents to sign an arbitration clause or choose arbitration over a standard lawsuit. Since 78% of nursing home residents have their care paid for by Medicaid or Medicare, this ruling promises to have a major impact on how nursing homes are run in the future. Absent of any challenges in court, the rule will take effect in November 2016 for all new nursing home residents.

What Do The Federal Changes Mean?

The new federal changes offer nursing home residents the option of suing the nursing home for negligence or file criminal charges and take administrators, nurses or other employees to court for damages. It also means that nursing homes cannot hide abuse or negligence behind the veil of arbitrators. Furthermore, if your loved one has been a victim of maltreatment by a nursing home employee or another resident, you can now hold the perpetrators accountable without being made to feel like the aggressor.

The new ruling also proposes other changes. It will require nurse’s aides to be trained in dementia and Alzheimer’s care and demands more training in general. Discharge planning will have to be more comprehensive and follow-up care must be designated by an interdisciplinary team.