The Battle Over Nursing Home Arbitration Rages On
Nearly every family has to face the agonizing decision at some point to have a loved one placed in a nursing home. The stress of that experience is terrible and can unleash a torrent of guilt, anguish, sorrow and concern. When faced with this onslaught of emotions, oftentimes the one through line we cling to in these situations is the hope that that our loved ones will remain comfortable and safe so they can enjoy what quality of life remains. Tragically, that comfort sometimes proves elusive once the paperwork is signed and our loved one is admitted to the home. Unfortunately serial neglect in a nursing home, which leads to death, remains a serious problem.
But rather than strive to improve the quality of care, by paying caregivers a living wage, thoroughly training and educating staff and closely monitoring the care being provided to its residents, the nursing home industry has instead sought to shield itself from civil lawsuits by burying something called an “arbitration provision” in the mound of admission paperwork families must sign to admit their loved ones to a facility. These forced arbitration agreements have long been an issue in nursing homes. Many admissions agreements contain a mandatory arbitration clause that prevents residents and their families from suing the nursing home in cases of injury, abuse, sexual assault, or even murder. With a forced arbitration agreement in place, these types of claims are heard in a biased system that often has no semblance of neutrality; in some instances, injured individuals’ claims are heard before lawyers that also represent—and are paid by—the nursing homes. According to Julia Duncan
of the American Association for Justice, “[f]or years, the nursing home industry has used forced arbitration to cover up allegations of abuse and neglect in secret proceedings before their hand-picked arbitration provider.” When faced with the decision to admit a family member to a nursing facility, the family—and perhaps the resident as well — often face the very real likelihood that the elderly family member might not ever be able to return home. For all practical purposes, all anyone is trying to do in that situation is get through the paperwork and get their elderly loved one comfortable and secure. The family arrives at the facility and is presented with admission paperwork. An admission coordinator, even if well intentioned, rarely or ever explains the paperwork in detail. The paperwork is also rarely read in full because if it were, each admission would likely take the better part of a day. The typical admission packet requires 25 to 35 signatures, and one of these signatures is to an arbitration agreement. As a result, even the most fairly written arbitration agreement is unfair in that situation, because the family does not know they are giving up their constitutional right to go to court if something goes wrong. In a rare federal acknowledgment of this phenomenon, on Sept. 28, the Centers for Medicare and Medicaid Services (CMS) issued a final rule that actually prohibits nursing homes from using pre-dispute arbitration agreements in admissions contracts dated on or after Nov. 28, 2016. The rule applies to all skilled nursing facilities that receive money from Medicare and Medicaid—the vast majority of all facilities in the United States. Unsurprisingly, on the heels of CMS's issuance of this final rule, the nursing home industry quickly filed suit in federal court in the U.S. District Court for the Northern District of Mississippi, seeking to block implementation of CMS's arbitration ban. And, for now, the industry has succeeded. Although seemingly sympathetic to the rationale underpinning the arbitration ban, District Court Judge Michael P. Mills granted
the industry's motion to block the ban on the grounds that CMS is a regulatory agency and that it takes an act of Congress to properly implement such a ban. So, for now, forced arbitration will continue to be the standard in nursing home admissions every day. But all hope is not lost. Judge Mills' decision is unlikely to be the last word in this fight and forced arbitration is likely to receive additional judicial or congressional scrutiny in the future. In the meantime, if you are faced with the difficult decision of having to admit a loved one to a nursing home, please keep in mind that a nursing home cannot refuse to admit your loved one if you refuse to sign an arbitration agreement. So be diligent when presented with the admission paperwork, in looking for a forced arbitration agreement. Refuse to sign it and protect your loved one in the event that they fall victim to substandard nursing home practices.