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Who Will Stand With Seniors?

Published on September 24th, 2017

The Des Moines Register reported that Iowa’s Republican Senators have been silent as to their position on Trump’s plan to support unfair mandatory arbitration clauses against nursing home residents.  Despite claiming to support vulnerable adults access to courts and protect their constitutional right to a jury trial, neither has joined colleagues in the Senate who are attempting to prevent care facilities from limiting residents’ right to sue for abuse and neglect.

Last year, the federal Centers for Medicare and Medicaid Services notified all nursing homes that receive federal funding a new rule was being proposed to prevent them from including unfair mandatory arbitration clauses in their admissions contracts with residents. The rule would specifically prohibit the “the use of pre-dispute binding arbitration agreements” in care facilities funded by Medicare and Medicaid.

Advocates for consumers, seniors and the disabled have protested CMS’ about-face, arguing that arbitrators, often paid for by the industry itself, tend to side with industry.

Rob Weissman, president of the advocacy group Public Citizen, told the Los Angeles Times the switch to allow forced arbitration was “a heartless and vile act.”

On Aug. 7, 31 U.S. senators, all Democrats, wrote to CMS Administrator Seema Verma and said forced arbitration agreements “stack the deck against residents and their families who face a wide range of potential harms, including physical abuse and neglect, sexual assault and even wrongful death at the hands of those working in and managing long-term care facilities.

 “These clauses prevent many of our country’s most vulnerable individuals from seeking justice in a court of law, and instead funnel all types of legal claims, no matter how egregious, into a privatized dispute resolution system that is often biased toward the nursing home.”

Mandatory-arbitration clauses that prevent consumers from suing for poor quality service has ignited a fierce public debate.  Consumer advocates say they aren’t opposed to arbitration as a voluntary option, but residents shouldn’t be required to relinquish their right to sue to gain access to health care that’s paid for with public money through Medicare and Medicaid.

“The worst time for a vulnerable person or his or her family to decide the means to resolve future disputes is when the contract is being presented at the often-urgent time he or she is being admitted to a nursing home, a time of particular physical and/or emotional stress,” the attorneys general wrote.

“The practice of executing arbitration contracts during the nursing home admissions process raises valid concerns on a public policy level,” Judge Michael P. Mills of the U.S. District Court in Oxford, Miss., wrote, noting that “many residents and their relatives are ‘at wit’s end’ and prepared to sign anything to gain admission.”

Thirty-six advocacy groups, including the National Consumer Voice for Quality Long-Term Care, National Organization for Women and The Arc of the United States have also sent a letter to CMS encouraging adoption of the proposed rule.

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