As the number of reports and claims of nursing homes abuse and neglect has continued to rise in the last several years, many states have begun enacting consumer protection laws to assist the elderly and their families. These measures have the added intention of holding nursing home facilities accountable for deficient care which leads to abuse, injury, or in some cases, death.
In an effort to circumvent these consumer protection acts and avoid the accountability to which the Federal and state legislatures sought, nursing homes are simply seeking to have clients waive their legal entitlements set forth by the very legislation intended to protect them. In my practice, I have recently had several reports and seen numerous attempts by long term facilities to have new patients execute forms which purport to force claims of abuse or neglect to an arbitration process, or in some cases, seek to entirely release facilities from any potential claim. While the validity of such releases or arbitration mandates have yet to be substantially challenged or contested by the way of case law, their effect to intimidate or at least slow the wheels of justice cannot in honest spirit be discounted.
New patients and their families (including those holding power of attorney or guardianship), must be extremely cautious when executing or approving the execution of documents. All documents should be carefully reviewed, and when necessary, nursing homes or their executive administrators should be questioned about their intent and purpose. No facility or ownership entity can justify a peremptory release of legal rights or even a mandate for arbitration. In either case, patients and their families should question the motive of the documents, and without legal consult, should not execute any documents which purport to restrict a patients legal recourse. Facilities that provide appropriate care should not fear the responsibility and accountability recent consumer protection laws set forth; rather, facilities providing quality care should simply view these laws as a validation or written memorial of the quality assurance process they already have in place.