Feds Blocked Nursing Homes From Forcing Admittees to Sign Away Rights

Scott Blumenshine

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Stories abound of nursing home residents being injured by negligence or abuse. You may have heard about patients who developed bedsores when they were left for hours lying in their own urine or excrement. Some patients have fallen out of bed because there were either no bed rails or the nursing staff failed to put them up. Patients have been discovered who are emaciated, malnourished and dehydrated.

In the annual report from July 2022, the Illinois Department of Public Health received over 9700 complaints which required investigation. At least the number of complaints is going down. 

Over the past several years, nursing homes and their insurance companies concocted a scheme to deprive those injured by wrongdoing. The process involved requiring residents to waive their rights to go to court for injuries. The waiver required claimants to go to arbitration instead of court. The reason for this was so that nursing homes would not have to face a jury trial and the wrath of the public. Arbitration happens in private.

In order to help combat neglect and end abuse, a law took effect January 1, 2016, that allows the family of a loved one who is in an Illinois nursing home to install surveillance cameras in the patient’s room. The patient and family members must pay for the equipment and its installation, but it will give them some peace of mind knowing the required sign announcing the room is under surveillance will likely deter abuse and neglect, but even if not, it will give them the evidence they need to pursue their case in court. That is, if they are allowed to take their case to court.

Mandatory Arbitration Clauses

Admitting a loved one to a nursing home is can be an emotionally distressing experience. It may be a last resort for a family who has struggled with providing home care. It may be the only solution for a person who was injured, had surgery or other problems that requires an interim stay in a nursing home before returning home. On admission to the nursing home, a number of documents have to be signed. One document is an agreement to subject all disputes to arbitration.

The agreement for arbitration is often signed without anyone taking time to read it. People often do not realize they have given up their right to a day in court and have agreed instead to have their dispute resolved privately, sometimes in the office of opposing counsel. They only discover this too late - after a dispute has arisen and they attempt to file a lawsuit against the negligence parties.

Although arbitration is good for the nursing home, it is almost never good for those who were harmed. The arbitration process is secret, so the negligence, abuse or neglect of the institution is not brought to the attention of the public.  

To help combat this secrecy and deprivation of legal rights, a new law will go into effect November 28, 2016, barring nursing homes from requiring patients to agree to submit all disputes to arbitration prior to admission to the home.

New Law Clears Path to Copur

The new law comes from the Centers for Medicare and Medicaid Services (CMS) and applies only to those facilities which receive federal funds. The CMS's new rule “will bar nursing homes from compelling residents to settle disputes in arbitration as a condition of admission.” There are other regulations designed to improve nursing home care included in the 713-page report. These are the first changes in requirements made to long-term care providers since 1991.

The new rule applies only to documents that were signed after 2016. It has no effect on arbitration agreements that were signed at an earlier date. Nursing home negligence and abuse attorneys advise people to review their contracts carefully. If there is a mandatory arbitration clause, an attorney may be able to work with you to renegotiate the contract.  

If you or your loved one has been injured due to negligence or abuse in a nursing home, contact us at the Blumenshine Law Group at (312)766-1000. Whether or not you signed an arbitration clause in the past, we may be able to help you. We have a track record of success in working for our clients who have suffered in a nursing home. We work diligently to be sure you and your loved one obtain all the compensation to which you are legally entitled.

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