A few weeks ago, the Centers for Medicare & Medicaid Services (CMS) released its 2016 Nursing Home Rule. Among other important items, the new rule protects the rights of nursing home, rehabilitation center, and other long-term care facility patients (and their families) to sue these homes in court. This is an important step in patient rights. The rule also clarified several definitions of terms and reaffirmed the rights of residents in long-term care facilities. The new rules become effective in November. To read the rule in its entirety, click here.
The Right to Sue Nursing Homes in Court
It has been the custom of many long-term care facilities to require patients (or their families) to sign what are called “pre-dispute binding arbitration clauses” in their contracts. When these clauses are accepted, they require patients and families to settle any dispute over care in arbitration, and not in a court of law.
The important change in the 2016 Nursing Home Rule is this: Nursing homes and other long-term care facilities that receive money from Medicare or Medicaid may not require patients or their families to sign binding arbitration agreements until/unless there is a dispute.
Binding arbitration agreements may be used if both the institution and the patient agree to this resolution of a dispute. Patients should understand that a 2009 study by the American Health Care Association (AHCA) found that the average awards after arbitration were 35 percent lower than awards from court action. AHCA is reportedly unhappy about the new rule.
- Abuse – Abuse is the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish. Abuse also includes the deprivation by an individual, including a caretaker, of goods or services that are necessary to attain or maintain physical, mental and psychosocial well-being. Instances of abuse of all residents, irrespective of any mental or physical condition, cause physical harm, pain or mental anguish. It includes verbal abuse, sexual abuse, physical abuse, and mental abuse including abuse facilitated or enabled through the use of technology. “Willful” as used in this definition of abuse, means the individual must have acted deliberately, not that the individual must have intended to inflict injury or harm.
- Adverse event – An adverse event is an untoward, undesirable, and usually unanticipated event that causes death or serious injury, or the risk thereof.
- Exploitation – Exploitation means taking advantage of a resident for personal gain through the use of manipulation, intimidation, threats, or coercion.
- Misappropriation of Resident Property – means the deliberate misplacement, exploitation, or wrongful, temporary, or permanent use of a resident’s belongings or money without the resident’s consent.
- Mistreatment means inappropriate treatment or exploitation of a resident.
- Neglect is the failure of the facility, its employees or service providers to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish or emotional distress.
- Sexual abuse is non-concentual sexual contact of any type with a resident.
All definitions from CMS 2016 Nursing Home Rule §483.8.
- To choose your own doctor.
- To participate in and sign the care plan.
- To have a care plan assessment within 48 hours.
- To request or refuse any treatment.
- To food that is nourishing and palatable.
- “When preparing foods and meals, a facility must take into consideration residents’ needs and preferences, and the overall cultural and religious make-up of the facility’s population.”
Resident rights are taken from CMS 2016 Nursing Home Rule §483.10.
Institutionally-spread Infections and Antibiotic Resistance
As many people are becoming more aware of the spread of infections within an institution and the discussion of antibiotic resistance, the new rule also requires nursing homes to develop an “infection prevention and control program” and a plan for monitoring the use of antibiotics.
Call Altizer Law, P.C.
These are important provisions and changes to the Nursing Home Rule. They should be understood by every resident of a nursing home and their families. If you have questions about these changes to the rule or if you have a dispute with a nursing home, call the experienced attorneys of Altizer Law, P.C. We are here to help you. We are Your Shield of Protection. Your Sword for Justice.