The federal Centers for Medicare & Medicaid Services (CMS) created a new rule in September of this year that prevented most nursing homes and long-term care facilities from adding a forced arbitration clause to the contracts of new residents that effectively strip them of their right to sue in court in the event of neglect, abuse and wrongful death (among other human rights violations) that may take place while in the institutional care of others. By implementing the new rule, the CMS was actively seeking to protect some of our country’s most vulnerable members, along with their families and loved ones, against settling such disturbing instances behind closed doors and out of the public eye. Not surprisingly, the industry itself did not approve and in turn, did the exact thing they want to prevent clients of these types of care-centered facility mistreatments from being allowed to do: they filed a lawsuit to stop the rule from becoming law. On November 7, 2016, the judge presiding over the case sided with the plaintiffs by issuing a preliminary ruling that successfully thwarts CMS’ ability to enforce the rule.
CMS created the tenet, which stipulated long-term care facilities who planned to or already do accept Medicare and Medicaid may only do so by removing arbitration clauses from the contracts of incoming residents, in order to protect the civil rights of elders; contracts already in place would not have been affected.
Forced arbitration is a tactic used by corporate giants to protect their public image by insisting any and all claims and complaints filed against them be settled behind closed doors with private lawyers retained by the companies themselves to ensure their own, as well as the perpetrators’, reputation remains in good standing, free from undesirable judgment or assumption about their manner of business and how they handle it.
By ruling against it, clients are prohibited from filing class action lawsuits in the event of widespread violations, in addition to individual cases in which residents experienced gross infringements on their personal health, safety and overall well-being. Needless to say, the outcome was met with tremendous disappointment by many. In his ruling, Judge Michael Mills wrote, in part, “As sympathetic as this court may be to the public policy considerations which motivated the rule, it is unwilling to play a role in countenancing the incremental ‘creep’ of federal agency authority beyond that envisioned by the U.S. Constitution.”
Advocates for the ban and members of the federal government equally expressed their frustration over the decision, along with messages of hope they will be able to overturn it. Democratic senator Al Franken of Minnesota said although he was disappointed, he still believes the rule can be employed, stating he fought for the ban because, “seniors and families shouldn’t have to sign away their legal rights in exchange for care.”
Similar statements were made by the Washington, D.C.-based advocacy group for long-term care, National Consumer Voice for Quality Long-Term Care, who released a statement which read, “Residents and their families should have the same opportunity to take their disputes to court that the nursing home industry is now availing itself of. Instead, their rights will continue to be compromised by facilities requiring these unfair clauses. Not only would we like to see a more favorable court ruling, we think Congress needs to settle this matter once and for all and prohibit pre-dispute arbitration clauses.”
One can’t help but wonder why nursing-home facilities would need the protection of a forced arbitration clause when their sole purpose is to provide compassionate, trained, and exemplary care to the elder population? Perhaps instead of cutting corners by paying direct caregivers a mere fraction above the nation’s set minimum wage, hiring qualified people educated in the field with knowledge of how to properly care for the aging population, and putting people before profit, the industry could rest a little easier knowing such cases would be fewer and far between rather than the seemingly accepted norm.
It’s time to do better. During these perpetually trying times, I really can’t stress that enough.
SCOTUS Look at Nursing Home Arbitration: ‘Mystifying,’ Intriguing