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The End of Secrecy in Nursing Home Wrongdoing

Wednesday October 26, 2016 - Jennifer Prell
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Posted: 19 Oct 2016 11:10 AM PDT

Carolyn Rosenblatt , CONTRIBUTOR –

I write about healthy aging, and dealing with aging loved ones.

Opinions expressed by Forbes Contributors are their own.
After 25 years without changes in basic rules, the nursing home industry is finally being forced to reveal hidden wrongs that happen to residents.

Until now, consumers were required to sign arbitration agreements when they were admitted to a nursing home. Unbeknownst to the average person, these agreements required that if anything went wrong in a nursing home, the family could not have their day in court to seek justice. Instead these grievances could be dealt with only in arbitrations, hidden from the public. Results were never known outside those connected to the arbitration hearing itself. If a nursing home neglected its residents or allowed serious harm to come to them, no one else would find out how an arbitrator decided such a case. Private arbitration took the place of a public trial in open court.

That has finally changed along with a lot of other very important rules. For years consumer advocates, many of them lawyers representing the residents or their families, have fought for elimination of these one-sided forced arbitration agreements. The lawyers who could not file cases in court for serious harm to a resident, even murder of a resident while in a nursing home wanted families to be able to seek justice the way everyone else does: by a regular lawsuit and a jury. Now they can.

No one wants to go to a nursing home in the first place. But after surgery, serious illness or an accident or because someone needs around the clock care, nursing homes are a necessary part of the health care system. Ideally rehabilitation takes place there in what is supposed to be a more relaxed setting than a hospital. Some people must remain in nursing homes for the rest of their days, due to many factors. These should not be dangerous places, but some are.

We do not have separate nursing homes for elderly criminals who have served their time and now need full time skilled care. We do not have separate nursing homes for disruptive or aggressive residents who suffer from mental illness or dementia with behavior problems. Everyone can be under the same roof and many nursing homes have not provided enough trained staff to properly care for the most difficult residents there. New rules now say they must properly train and staff their facilities. They must protect vulnerable people from dangerous other residents who might harm someone if not carefully supervised by skilled staff. They must spend resources on getting enough workers and teaching them how to do the job properly.

The Federal entity, the Center For Medicare and Medicaid Services has issued these revised rules, much to the relief of advocates. The improved rules affect over 15,000 long term care homes that accept Medicare and Medicaid across the country. In reality, the worst nursing homes will not fully comply with the new rules, as they did not fully comply with the older versions of what was acceptable. But in order to receive payment from Medicare and Medicaid (most of the income in these homes), all homes will have to step up to better standards or they will lose money.

How does this affect the life of anyone with an aging parent or other loved one? It means that if your family member has to go to a nursing home, they are likely to be safer than before these rules came into being. Rules are not a guarantee of safety for anyone. But, no one placing a loved one in a nursing home can be forced into signing an agreement to arbitrate a grievance there. My hope is that you never have such a grievance. Learn some pointers on how to choose that nursing home. You might be under pressure with little time to pick one from a list of unfamiliar names. Take the time to visit a few, see them in person and get a sense of how they operate. You’ll learn at lot by an unannounced visit.

The best takeaway here is to watch over your loved one daily if you can, particularly in any nursing home.

Carolyn Rosenblatt, RN, Elder Law Attorney, Healthy aging and protecting our elders,,

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