by Countable | 3.26.18
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.
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 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!
— Asha Sanaker
(Photo Credit: Ann via Flickr / Creative Commons )
Written by Countable
Nursing home patients and their families definitely SHOULD be able to sue the facility if the elderly person is mistreated.
Do not allow lawmakers to eliminate the opportunity to seek justice when a human being has been neglected or abused in any location, but especially not one where they are paying over $4500 a month. Just outrageous this is even being considered.
Are you serious? You mean if I get older, I can't decide my fate and have no right to sue idiots who try to rip me off, nursing home or not? Do older people like me just lose rights? No way. Please stop the insanity in Congress.
"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." No business should be able to require a person to give up their right to go to court as a condition of doing business. Especially when the business is providing care for the most vulnerable members of our society: the ill and infirm.
The statement that the elderly must arbitrate in case they are mistreated or abused while in nursing home care indicates that these businesses expect to mistreat or abuse those in their care. If we are truly a nation built on laws, then just because you are elderly is not a good enough reason for your right to sue to be taken from you.
Our father was diagnosed with Dementia in 2010. As a family we had to be sure that one or more of us made it to the facility and check on dad daily and weekly. We kept them and their staff on their toes. Bottom line is that these corporate care-taking facilities are in it for profits. It's a business. Anyone should be able to sue for lack of performance on these contracts for apartments and medical care. They certainly would toss anyone out for lack of payment and they wouldn't hesitate to sue your family for past due services.
People have every right to sue if they are done wrong . The rich companies do it every time . So the American citizens should too.
VOTE NO! I have seen elderly neglect and the horrible side-effects. The elderly need advocates and have the same right to demand justice.
You want rape victims to go to arbitration! You want physically abused (beaten, choked, tripped, pushed to the floor, etc) to go to arbitration! Resident has pneumonia and is admitted to hospital. There patient could sue for abuse or mistreatment. Then he/she is discharged back to same facility where there can be no suits? What alternate reality are you living in? Agency says would be too many law suits. Well, FIX the problem. Don't make the RESIDENT responsible for his/her abuse and mistreatment. We don't treat animals that cruelly, but you want to treat the elderly like that. This LAW is abuse and mistreatment.
Litigation would not exist if people and companies could be trusted to do what's right. Unfortunately we cannot trust that human dignity will be upheld and that measures to maintain a safe environment are taken. Consumers should have the right to bring forth litigation without having to sit through an intimidating situation like arbitration. Stop letting companies run roughshod over individual people like playground bullies.
The majority of nursing homes go unsupervised, therefore essentially unregulated. I have seen patients come to our hospital after long periods of not getting the medications they require, and not getting the care they need. It is shocking and terrifying. Nursing homes should be held responsible and liable for poor care. Consider this: we may all end up in a nursing home someday. How do you want to be cared for?
If you want to go through with this, then I can't wait till you're in their shoes and get mistreated and have nowhere to turn. It's time for the government to stop putting things in the background and watching out for their pockets. Stop asking stupid questions. Start treating each other right and fair, it's what's best for everyone. Including the entire rest of the world.
True story. Nursing home in area failed to give patient her nightly meds which would have allowed her to sleep through the night. Nursing home failed to do a bed check. Nursing home failed to secure exits so that residents could not wander off. Nursing home failed to securely attach ankle security monitor to resident. Her body was found 6 months later. What penalty should nursing home pay? None according to this law. Fortunately family sued and won. Another true: "Too bad you'll miss lunch. We're having PB & J sandwiches!" And you want to eliminate suits so nursing homes can rest easy. Poor lady who died didn't rest easy did she?
Well this is clearly a gift to the corporate interests in senior care... Why shouldn't seniors or their families have the right to sue for cases of neglect or mistreatment? Seriously, you need to rethink who you work for, we the people are your employers, not your corporate masters!
Too few staff to adequately care for residents. Plus the pay is bad and often employees are mistreated. Trump wants to increase employment--there are thousands of jobs available in health services. It is the fastest growing area due to aging of baby boomers. Fix THAT, mr. trump!
Is this anyway to treat those who through hard work and perseverance paved the way for you and others to attain your standing on today's world stage ? I think not, they deserve better. In stead develop programs to better treat and accommodate those on whose shoulders we are standing. Don't even think about repealing this Act!
The elderly should not have to give up their legal rights just because they are in a nursing home.
This rule proposal reads like CMS CYA. Sounds like someone is afraid of having their friends sued.
ARBITRATION AGREEMENT...is the American way to proceed, don't you agree? Otherwise, why would one HIDE or refrain from listening to us elderly--Americans!?
Having a mom who's been abused in a facility, elders & their families deserve protection. One can't believe honestly what's done. My moms had her nose broken, fell out of her bed, wheel chair, black & blues all over. My niece walked in on one aide abusing my mom!!! She has Alzheimer's can not tell us what's happening. And she's paying over $12,000 a month without basic supplies we provide for her. You tell me who needs protection!!!