Tax reform, healthcare and the debt ceiling have been at the top of the agenda for Congress. However, consumer activists and Democratic lawmakers are serving notice of their intent to continue protecting the right of people to sue nursing homes for abuse and neglect of the elderly patients in their care since the Trump administration plans to rollback legal rights for people to sue nursing homes Obama put in place.
Under the Obama administration’s plan, nursing homes which receive federal funding, which is most, were prohibited from requiring all disputes, including neglect and abuse, to be addresses through a mandatory arbitration as opposed to the legal system.
During the August recess, 31 senators wrote to the Centers for Medicare and Medicaid Services (CMS) provisions in their contracts for mandatory arbitrations. Lawmakers stressed that forced arbitration stacks the deck against the residents and their loved ones. Residents face a wide array of potentially harmful activity. Physical abuse and neglect, as well as sexual abuse and wrongful death at the hands of nursing home staff are top among the atrocities residents can possibly face.
Activists claim these clauses stop these especially vulnerable members of society from their right to seek justice in a court of law. Funneling any and all grievances, no matter the depravity, through a privatized argument resolution system predisposed toward its creator is obviously questionable legally. Three dozen consumer groups and advocates sent a separate letter calling the clauses cruel and saying they were a disturbing trend for an organization that should be protecting patients and not facilitating their harm and cover up.
California’s attorney general and those of 15 other states as well as the District of Columbia submitted opinions asking CMS to maintain the right to sue for patients and their families, naming it as a crucial means of holding elderly care facilities accountable for the safety and well-being of their residents. A CMS spokesperson said over 1,000 public comments were received. Federal law states CMS is given three years from the date of the proposed change to release its final ruling.
The nursing home industry is not the sole industry to prefer arbitration as a means of dispute resolution. Telecom companies and credit card issuers are the most well-known types that also deny their clients their day in court but there are several other businesses as well. The reasoning they give is that customers benefit from the speedier and cheaper option of arbitration proceedings as court cases can be tied up for years.
The advocacy group Public Citizen conducted a study that showed consumers are routinely shorted in arbitration. California consumers were voted against 94% of the time in arbitration with credit card companies and banks over a period of 4 years. According to a 2006 study from Consumer Financial Protection Bureau, class action lawsuits consistently provide the most efficient means for customers to resolve problematic behaviors from companies.
One factor that may be the key in all this is that arbitrator’s fees are paid by the company. To keep working and getting more cases, arbitrators have a strong incentive to side with the company. One point often overlooked about litigation is that is also serves as a public record for others who may use the service or be considering it. The Department of Health and Human Services reported 33% of nursing home residents experienced some type of hostile event and temporary harm. Investigators showed evidence of substandard treatment, inadequate monitoring and delayed or complete failure of care. It has been determined solidly that substandard treatment and inadequate monitoring lead to 100% preventable accidents and deaths. The question is whether the victims of these events have the right to a day in court.