The District of Columbia and 16 states are urging the Trump administration to protect an Obama-era rule that gives nursing home residents and their families the right to take facilities to court over alleged abuse, neglect and sexual assault.
D.C. Attorney General Karl Racine and state attorneys general for California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New York, North Carolina, Oregon, Pennsylvania, Vermont and Washington sent comments to the Centers for Medicare and Medicaid Services (CMS) opposing its proposal to rescind the Obama-era rule.
“Pre-dispute binding arbitration agreements in general can be procedurally unfair to consumers, and can jeopardize one of the fundamental rights of Americans; the right to be heard and seek judicial redress for our claims,” the attorneys said in their comments.
“This is especially true when consumers are making the difficult decisions regarding the long-term care of loved ones. These contractual provisions may be neither voluntary nor readily understandable for most consumer.”
The Hill added:
CMS announced its plan in June to revise the rule and allow nursing homes to use the provisions, known to lawyers as pre-dispute arbitration agreements, so long as the agreements are written in plain language and are explained to the prospective resident. The resident must also acknowledge that they understand the agreement they are signing.
The attorneys general said they do not oppose mutually agreed upon arbitration agreements that are reached to resolve a dispute at the time the dispute arises; they oppose the imposition of such requirements on families who, under pressure, seek to admit a loved one into a long-term care facility and may not be in a position to object to the inclusion of such clauses in admission papers.
“These kinds of clauses are unfair to seniors and their families and limit District residents’ basic right of access to justice,” Racine said in a statement. “We are urging the Trump administration not to force vulnerable residents to sign away their own rights to gain the care they need.”
In a letter Monday, Sens. Al Franken (D-Minn.) and Ron Wyden (D-Ore.) urged Seema Verma, the administrator of the Centers for Medicare and Medicaid Services (CMS), to reconsider her proposal to reverse the Obama-era rule, arguing that these clauses “stack the deck against residents and their families.”
“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,” they wrote.
“As a result, victims and their families are frequently denied any accountability for clear instances of wrongdoing.”
“Regardless of how plain the language is, as potential nursing home residents and their families are weighing their options for long-term care, they should not also be expected to contemplate whether such a grave harm could arise, let alone what avenue of recourse they would pursue in the event that it does,” the senators added.
“Too often, only after a resident has suffered an injury or death do families truly realize the impact of the arbitration agreements they were forced to sign. The only truly transparent arbitration agreement is one that is voluntarily signed, after a dispute has arisen.”
The agency is reviewing public comments, which were due Monday.