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Help Fight Efforts to Restrict Long-Term Care Consumers’ Access to the Civil Justice System

January 12, 2015

As state legislatures are beginning to come back into session once again, we are asking for members in our network across the country to keep alert of your state legislative proceedings and to be on the lookout for any problematic legislation that would hinder long-term care consumers’ access to the civil justice system. Such legislation may include bills that would limit or bar consumers’ access to legal action against facilities, deny consumers their constitutional right to a trial by jury, as well as legislation to limit the ability of judges and juries to do their jobs or limit the levels of compensation consumers or their loved ones can receive in legal actions against facilities. The civil justice system plays an important role in holding bad acting facilities and chains accountable for poor care, abuse and neglect. It helps to inform the public of such bad actors, compensate consumers and their loved ones for injuries and losses, and ensure that federal and state laws governing nursing homes and other long-term care settings are adequately enforced. Limiting consumers' access to the civil justice system would negatively impact the quality of care in these settings.

Specific examples of legislation we have seen that would hinder consumers' access to the civil justice system include bills to strengthen the power of nursing home pre-dispute, forced arbitration agreements. For those who may not know what pre-dispute, forced arbitration agreements are, these agreements are increasingly included in nursing home and other long-term care facility admission contracts that must be signed in order for consumers to be admitted as residents. Once signed, these agreements strip consumers of their constitutional right to trial by jury should they suffer harm or injury while residing in the facility. Instead, any dispute that arises must be settled by arbitration – a process in which one or more arbitrators decides the outcome instead of a jury made up of members of the community. Oftentimes, arbitrators for this process are selected by the long-term care facility, placing consumers at an unfair disadvantage during proceedings. 

Other problematic legislation that may arise at the state level include 'standard of care'  legislation, whch would not allow for any state or federal standard of care that facilities must meet in order to participate in the Medicare/Medicaid programs or be licensed at the state level to be used to establish a case of medical malpractice if these standards are not met by a facility. This would mean that, if a nursing home failed to adhere to federal and/or state regulations concerning quality of care or quality of life in nursing homes - such as nurse staffing standards, care planning requirements, or regulations concerning abuse, neglect or poor care - such violations could not be used by consumers or their loved ones in creating a legal case against a nursing home, in individual cases as well as class action lawsuits.

We urge individuals to be on the lookout for any legislation that may be introduced in your state that could harm consumers’ access to the civil justice system, inform us of such legislation by e-mailing Marybeth Williams, Public Policy Associate, at mwilliams@theconsumervoice.org, and write or call your state elected officials in opposition of any problematic bills or to urge for the protection of consumers access to civil justice. You can find information on how to contact your state elected officials by entering your zip code at www.openstates.org. We will continue to inform our network through the Gazette and through action alerts on bills that may arise at the state or federal level and provide actions that can be taken. If you are not signed up to our action network to receive alerts, you can do so here.

To learn more about protecting consumers' access to civil justice, click here. To learn more about the issue of forced, pre-dispute arbitration agreements in nursing home contracts, click here.