As expected, the Trump Administration ignored consumer rights once again, prioritizing industry profits. The Centers for Medicare and Medicaid Services (CMS) released its final rule regarding the use of forced arbitration by nursing homes and other long-term care facilities last week. The rule sanctions facilities’ practice of stripping patients of their rights by forcing them (or their caregivers) to sign arbitration agreements when they enter the facilities’ care.
In 2016, CMS banned the use of arbitration agreements by any facility that received funding from CMS. The ban was implemented after CMS studied years of data and determined that forced arbitration agreements are not only unfair to residents and their families, they protect wrongdoers and allow them to avoid accountability.
The nursing home industry, including a leading industry lobbying group, the American Health Care Association (AHCA), fought vehemently to overturn the ban. The AHCA and other industry groups sued CMS and the Department of Health and Human Services (HHS) after the ban went into effect. It seized its opportunity with the change in Administrations to secure a wishlist of rule changes that would benefit the bottom lines of facilities nationwide.
Under the Trump Administration, CMS announced a three-phase plan to revamp nursing home care standards, rules and regulations, including overturning the ban on arbitration agreements and implementing a Quality Assurance Performance Improvement plan. Last week, it also announced a delay in implementing the improvement plan by one year. CMS boasted that the measures will save owners of nursing homes $616 million a year.
The announcement drew criticism from lawmakers and consumers’ rights advocates who say CMS sacrificed residents’ rights by bowing to the well-funded nursing home lobby.
“Everyone should be outraged at this injustice, which gives a ‘get out of jail’ card to nursing homes that neglect or cause the death of some of our nation’s most vulnerable and fragile people,” said National Consumer Law Center Associate Director Lauren Saunders.
Senator Ron Wyden (D-Oregon) and Congressman Richard Neal (D- Massachusetts) condemned the final rule in a joint statement saying, “The HHS Inspector General has found that one-third of Medicare beneficiaries experience harm within 35 days of entering a skilled nursing facility. It is clear that seniors need more consumer protections – not fewer.”
“Forced arbitration shields nursing home corporations from the judgment of a jury and allows wrongdoing in nursing homes to continue without scrutiny, leaving our seniors defenseless against abuse,” reads a statement from the American Association for Justice.
Congresswoman Linda Sánchez said, “The administration’s new rule does not put patients first.” She said that arbitration allows facilities “to hide their malpractice and deny families their day in court,” adding that she will soon reintroduce legislation prohibiting nursing homes and long-term care facilities from using arbitration agreements.
Nursing homes often exploit a resident or their caregiver at a time when the need for care is critical and urgent. Forced arbitration agreements are included as part of an extensive contract. Most residents and their family members have no idea that they are potentially signing away their right to a trial by jury. They are surprised to find out that they cannot file a lawsuit even when the nursing home staff injures or kills their loved one. Under the shadow of arbitration, nursing homes can continue to avoid any serious consequences for their wrongdoing. The growing number of consumers requiring services of nursing homes or long-term care facilities, horror stories of nursing homes abusing residents, and data showing quality of care declining all while owners of nursing homes sock away outrageous profits should give all consumers cause for concern over the power of the industry.
Beasley Allen lawyer Alyssa Baskam represents individuals who have been injured or the families of those who have died as a result of nursing home abuse or neglect. To assist families and lawyers pursuing justice for victims, Beasley Allen has prepared a brochure with information to help identify the signs of abuse and neglect, and advice about how to file a claim. Visit our Publications page to obtain a free copy.