Legal protections

Congress should make pre-dispute mandatory arbitration provisions in LTSS contracts unenforceable.

The federal government and the states should guarantee and protect the rights of residents in nursing facilities and residential care settings, such as assisted living. Residents and LTSS recipients must retain their private right of action when facilities violate state laws and regulations, or the government fails to enforce such laws.

States should not limit the amount of punitive damages (or joint and several liability) or unreasonably limit damage awards for pain and suffering in tort actions involving LTSS providers (see also Private Enforcement of Legal Rights).

States should establish a resident’s right to alternative forms of dispute resolution, such as mediation, provided that states do not inhibit or discourage residents or their families from resolving disputes through other means. This should include the federal and state enforcement system, the ombudsman program, and the courts. A facility’s use of binding arbitration and dispute resolution agreements as a condition of admission or continued stay should be prohibited.

States should enact and strictly enforce antidiscrimination and civil rights laws to protect the fundamental right of all applicants to—and residents of—nursing facilities and residential care settings to be free from discrimination.

State governments should ensure that their laws prohibit LTSS staff from taking, keeping, and distributing photographs and recordings that are demeaning or humiliating to consumers or that otherwise violate the consumer’s right to privacy and confidentiality.