The AARP and trial lawyers say that the nursing home industry is simply trying to protect itself at a time when reports of violations at nursing homes are running rampant in the media. The opposition already has caused the powerful nursing home industry to revamp its “The Nursing Home Patient Protection Act of 2008” proposal, raising its proposed cap from $300,000 to $500,000. The lobby group also removed language opposed by AARP that would have allowed nursing homes to require their patients to sign arbitration agreements to prevent lawsuits and to require nursing home suits to have the same legal restrictions as medical malpractice claims.

According to a study conducted by the nursing home industry, Tennessee nursing homes paid nearly $5,000 on average per patient on liability costs, whereas states that had tort reform paid about a quarter of that on average per patient. A nursing home representative said that the mounting costs paid by nursing homes to defend lawsuits eats into profits that could be invested to improve patient care.

Tennessee Rep. Mike Turner, a firefighter who fought the 2003 Tennessee nursing home fire that killed 16 people, says the caps would open the door for more negligence. “These are our most vulnerable people and they earned the right to be treated with dignity in their old age,” Turner said to the paper. “I just think by capping it, we’ve done a disservice to them.”

The nursing home industry and trial lawyers have agreed to meet later this week to discuss a reasonable compromise.

SOURCE: Nursing Home Abuse › Tennessee nursing homes lobby for caps on damage claims

Medicaid, which is the state-federal body that provides health coverage and nursing home care to the poor, pays nursing homes millions each year for treating patients who qualify for Medicaid. Advocates for the elderly contend that nursing homes have successfully lobbied politicians to make qualifying for community care more difficult, thus forcing these older or disabled individuals to move into nursing homes when they are independent enough to live at home, with relatives or in assisted living.

Individuals who qualify for Medicare and who become sick or disabled have no trouble qualifying for nursing homes, but are finding it far more difficult to receive Medicaid-supported services, the report states.

Advocates cite a 1999 U.S. Supreme Court case known as the Olmstead decision, in which the court ruled that the unjustified placement of individuals in institutions such as nursing homes amounted to discrimination under the Americans with Disabilities Act. The decision stated that states must provide community care if it can be accommodated and would be appropriate.

“There’s a lot of concern that the nursing home industry is very powerful in many states and has made sure that a lot of Medicaid dollars go to institutional care as opposed to home and community-based care,” says an attorney at the Center for Medicare Advocacy.

SOURCE: Nursing Home Abuse › Florida Medicaid recipients want to choose where to live

“We believe the vast majority of nursing homes are doing a very good job and working hard to deliver quality care,” Sen. Kohl told the committee. “But we must protect the rights of those who receive inadequate care to hold the facilities accountable.” He said the bill would “send a strong message to underperforming facilities that harmful care is not acceptable.”

Sen. Martinez said the practice of nursing homes requiring residents to sign mandatory arbitration agreements is an overreach of the original purpose of the 1925 Federal Arbitration Act, which he says provides for voluntary arbitration agreements. Requiring a mandatory arbitration agreement as a condition of admittance to a facility is taking advantage of the nation’s most vulnerable citizens, he said.

“I was a practicing attorney for many years, and I believe alternative dispute resolution is a legitimate way to resolve disputes,” Sen. Martinez said, “but it should apply to … people in similar positions when entering an agreement to arbitrate. Prospective nursing home residents – our nation’s most vulnerable population – should not be forced to sign an arbitration agreement as a condition of being admitted to a nursing home.”

Senators Martinez and Kohl pointed out that when patients and their families are at the point of entering a nursing home facility, the patient often is in need of immediate care. Sometimes there are no alternative facilities in close proximity to the patient’s home. Families feel they must sign the agreement in order to ensure their loved one gets needed care right away. Most, they say, do not realize they are relinquishing their rights to go to court.

Sen. Orrin Hatch, R-Utah, spoke in opposition of the bill. He expressed concern that removing arbitration arrangements from nursing homes will cause a rise in long term liability costs and ultimately result in a worse quality of care for the nation’s elderly. He said he believes the proposed Senate bill will result in small business owners going out of business and less well-off seniors unable to afford resulting higher prices.

“I am deeply concerned about nursing home abuse,” Sen. Hatch said. “The abuse of a patient’s trust cannot be tolerated.” However, he said, he feels the problems are being addressed by the nursing home industry.

Sen. Martinez disagrees. Arbitration, he says, “remov[es] the one incentive the industry has to self-regulate and police itself and provide a level of care that I believe is what all of us would like to see for our most vulnerable residents.”

A webcast of the meeting is available at the web site for the United States Senate Special Committee on Aging.

SOURCE: Nursing Home Abuse › U.S. Senate debates arbitration