Who’s Protecting Grandma? New Rule Seeks to Prevent Elderly From Suing Retirement Homes

What’s the story?

The public comment period ended Monday regarding a rule change proposed by the Center for Medicare & Medicaid Services (CMS), which would continue to allow nursing homes to force residents to sign agreements that they couldn’t sue if they are mistreated or abused.

Why does it matter?

Nursing homes have always been able to require incoming residents or their legal representatives to sign arbitration agreements. Basically, the agreements say that if the resident is mistreated or abused they have to pursue arbitration instead of suing.

In 2016, under President Obama, CMS proposed a rule change to prohibit these arbitration agreements. The American Healthcare Association, along with a group of nursing homes, sued, arguing that the rule violated the Federal Arbitration Act and overstepped a federal agency's authority. The Chamber of Commerce supported the suit, maintaining that the cost of allowing costly lawsuits would vastly increase the costs of nursing home care.

A federal district judge ordered a block on the enforcement of the anti-arbitration rule until the lawsuit could wind its way through the courts, so it’s never gone into effect. And now the current administration is considering abandoning the Obama-era rule entirely.

Dozens of consumer groups have banded together under the banner of Fair Arbitration Now to defend the Obama-era rule. Their general statement on forced arbitration alleges that consumers are not adequately protected under arbitration proceedings:

"Most people don't know that forced arbitration clauses are buried in the fine print of many contracts to receive products and services, and even to obtain employment. These contract clauses force people to give up their right to go to court - even if a company harms them or rips them off. Instead consumers are pushed into secret arbitration. In arbitration there is no judge, jury, and decisions are rarely appealable. Arbitrators do not have to follow the law. Civil rights and consumer protection laws can become meaningless in arbitration. That's why we need a federal law to make arbitration truly voluntary. Eliminating forced arbitration clauses from contracts will give us - consumers and employees - the power to choose court or arbitration after the dispute arises.”

CMS maintains in a statement that its new proposed revisions will "help strengthen transparency in the arbitration process, reduce unnecessary provider burden and support residents’ rights to make informed decisions about important aspects of their health care."

The revisions, in addition to lifting the forced arbitration prohibition, include the following requirements:

• All agreements for binding arbitration must be in plain language.

• If signing the agreement for binding arbitration is a condition of admission into the facility, the language of the agreement must be in plain writing and in the admissions contract.

• The agreement must be explained to the resident and his or her representative in a form and manner they understand, including that it must be in a language they understand.

• The resident must acknowledge that he or she understands the agreement.

• The agreement must not contain any language that prohibits or discourages the resident or anyone else from communicating with federal, state, or local officials, including federal and state surveyors, other federal or state health department employees, or representatives of the State Long-Term Care Ombudsman.

What can you do?

What do you think of the proposed CMS rules revisions? Do you think they adequately protect vulnerable residents and their families?

Use the Take Action button to tell your reps what you think!

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— Asha Sanaker

(Photo Credit: Ann via Flickr / Creative Commons )