The Trump administration has proposed revising a rule that hasn’t even gone into effect yet, with the goal of making sure that nursing home residents and their loved ones can not sue these long-term care facilities in the event that something horrible happens.
Amid concerns about the treatment of patients at nursing homes and assisted living facilities, a growing number of the companies that operate these businesses have begun including forced arbitration clauses in their residents’ contracts.
These clauses take away the patient’s constitutional right to a day in court, and shunt all legal disputes into private (often confidential) arbitration. Additionally, most arbitration clauses also include a ban on class actions, so multiple residents of the same facility who were each wronged in the same way would nonetheless be barred from having their issue heard jointly. Rather, each resident would be required to go through the arbitration process on their own.
In 2016, the Centers for Medicare and Medicaid Services (CMS) passed a new rule that would stop almost all long-term care (LTC) facilities from forcing new residents to sign binding arbitration agreements. Basically, if an LTC wanted to accept either Medicaid or Medicare it would need to abide by this rule.
However, the American Health Care Association — an LTC industry trade group — sued the government almost immediately to prevent this rule from taking effect, and in Nov. 2016, a federal judge in Mississippi granted an injunction temporarily barring CMS from moving forward with implementing the ban on arbitration agreements.
The Department of Health and Human Services had until last Friday, June 2, to file with the court to continue the government’s appeal, but instead allowed their appeal to lapse [PDF], indicating that HHS has no intention of defending this rule.
That intention was made clear this week, when CMS officially proposed a revision to the arbitration ban; rather, it’s less a revision than it is a deletion.
The new administration, which has openly derided the federal court system when judges have disagreed with the White House, is here embracing the opinion of the Mississippi judge, saying that “After [the Nov. 7, 2016] decision, CMS reviewed and reconsidered the arbitration requirements in the 2016 Final Rule.”
The CMS proposal — which comes only days after representatives for the industry actively lobbied lawmakers on Capitol Hill — claims to increase the transparency of arbitration clauses by making sure they are written in plain English, that they must be explained to the resident, and that the resident must specifically acknowledge this clause.
But what good does transparency do when the resident has no choice?
“Mr. Adams, signing this clause means you won’t be able to sue Sally’s Nursing Funhouse in court, even if we’ve been deliberately charging illegal fees to you and all the other residents for years.”
“Well, that doesn’t sound good. I don’t think I’ll sign that.”
“Okay then. You can’t live here.”
“Fine. I’ll just take my business to Jimmy’s Assisted Livatorium.”
“They’re actually owned by our parent company, and even if they weren’t, every other nursing home in the area has basically the same clause, so you’re likely out of luck.”
“Oh well, at least now I know I’m powerless to fight back. Thank you CMS for this new, glorious layer of transparency!”
The Fair Arbitration Now coalition, a group of consumer and legal advocacy groups (including our colleagues at Consumers Union), is calling shenanigans on CMS’s decision to let the LTC industry win this battle.
“Anyone who has ever had a family member move into a nursing home, or anyone with an ounce of sense and compassion, would recognize that seniors and their families undergoing an incredibly challenging transition are in no position to bargain over obscure contract terms – terms they probably do not even understand,” says Robert Weissman, president of Public Citizen, a member of the FAN coalition. “The Trump administration apparently thinks it is okay for nursing homes to force seniors into signing contract terms that give up their right to sue in court if they are subsequently victimized by neglect or abuse. It’s hard to imagine a more callous policy.”