Recently, due to the continuing decline in the quality of care provided by nursing homes across the state patients have begun to pursue their rights in court and have obtained class-wide injunctions against facilities that consistently violate those rights.
In another attempt to curtail the enforcement of patients’ rights the California Association of Health Facilities (CAHF), joined by a number of other nursing homes, has sued the State of California, in Federal District Court in Fresno, California Association of Health Facilities, et al. v. State of California, claiming that provisions of the Patient’s Bill of Rights are “pre-empted” by the Federal Arbitration Act.
Under Health and Safety Code §1430(b) “(a)n agreement by a resident or patient of a skilled nursing facility or intermediate care facility to waive his right to sue for violation of (the Patient’s Bill of Rights) is void as contrary to public policy.” Similarly Health and Safety Code §1599.81(d) provides that any arbitration agreement with a nursing home shall notify the patient that they cannot waive their right or ability to sue under the Patient’s Bill of Rights.
The “for profit” nursing homes are clearly upset with the possibility that they may actually have to comply with the Patient’s Bill of Rights. Because of this they seek a finding that the provisions requiring protection of patients rights are subject to arbitration and, thus, will never see the light of day.
One would think that there is no more fundamental state right under the tenth amendment to the Constitution than to allow a state to protect its elderly. The State of California has moved to dismiss the action arguing that the jurisdiction of this matter does not lie in federal court and, if there is going to be an abrogation of state rights, it should be done in a state court. That motion is presently pending.
Here in Humboldt County Janssen Malloy LLP has been fighting for the rights of residents for years and has been involved in some of the most important cases protecting residents rights including Fitzhugh v. Granada Health Care (2007) 150 Cal. App. 4th 469 and Shuts v. Covenant Care (2012) 208 Cal. App. 4th 609. If you feel your rights or the rights of your loved ones have been violated by a nursing home please give us a call.