THE FEDERAL GOVERNMENT JUST MADE IT EASIER TO SUE NURSING HOMES

Elderly care in Texas has problems and that makes the fact that it's often difficult for the elderly to be heard in court even more troubling

By Dianna Wray

Houston Press
October 4, 2016

When Elisa Zapata died, her Houston family wanted to sue the nursing home, Fredericksburg Caring Co. LP. They ultimately found they couldn't do it. Now, a significant policy change by the federal Department of Health and Human Services aims to empower patients like Zapata.

Earlier this year, the U.S. Supreme Court declined to hear a case from Zapata's relatives, who tried to sue the nursing home company for supposedly failing to protect Zapata from abuse and neglect and failed to render appropriate and timely care before she died.

But the lawsuit was not allowed to go forward because the nursing home company demanded arbitration.

Most nursing home companies have an arbitration clause where any legal disagreements between the company and the resident or family will be kept out of court and settled behind closed doors.

The family went to court to fight for their right to, well, have their day in court. A lower court sided with them, the Texas Supreme Court sided with the company and finally in January the U.S. Supreme Court declined to issue a writ of certiorari for the case, effectively ending the fight.

Now the government is making it harder for nursing homes to keep complaints from patients out of court. The Centers for Medicare and Medicaid Services, an agency under the Health and Human Services Department, issued a rule last week that blocks nursing homes from getting federal funding if they require residents to resolve disputes through arbitration, according to the New York Times.

The rule is a part of the Obama administration's attempt to stop the practice of including arbitration clauses in nursing home contracts, and the law actually goes further than simply discouraging these clauses, since it will choke off the federal funding to nursing homes that insist on continuing to use arbitration.

The nursing home system in Texas has a plethora of issues. A new study commissioned by the Texas Health Care Association found that homes for the elderly have managed to get worse when it comes to care in recent years. The study, issued in September, says that the state's 1,200 nursing homes reported 3 percent more “severe deficiencies” in nursing home care from 2010 to 2014. (A "severe deficiency" is the kind that might lead to serious injury of a resident.) What makes this study all the more troubling is that it can be very difficult to actually sue a nursing home if something does go wrong.

At the time, the Zapata case was all too common, but now it's gotten at least a little bit easier for elderly residents and families to get their cases heard in court instead of arbitration. The Centers for Medicare and Medicaid Services, a federal agency that controls $1 trillion in Medicaid and Medicare funding, has recently revised its rules specifically to stop nursing homes from being able to force cases over neglect, elderly abuse, wrongful death and other issues into private arbitration instead of the courts.

Barring any attempts to block the measure through lawsuits, the rule will take effect in November. The rule isn't grandfathered, so it will only apply going forward. But it's still something. At least there's a chance that elderly people will have a better shot at getting their voices heard in court.