Seniors should not have to leave their constitutional rights at the nursing home door

Editorial: Signing an arbitration agreement when entering a nursing home means forfeiting your right to judicial recourse if you're harmed

Iowans in nursing homes are frequently not able to advocate for themselves. They may be confused. They may be too sick to report abuse. Family may not be nearby to help out.

The rest of us have an obligation to do everything we can to protect them. That includes not only working to prevent abuse, but providing recourse if it happens and sending a message to nursing homes they will be held accountable.  

Sen. Chuck Grassley prides himself on being an advocate of seniors. He held a hearing this year on abuse and neglect in nursing homes. He was the lead author of an abuse prevention bill signed into law by former President Obama. 

Now he should devote his attention to protecting the constitutional rights of people in care facilities. He can do this by advocating for legislation banning homes from requiring residents to resolve disputes through arbitration. 

Bear with us while we explain what’s at stake.

When you enter a nursing home or assisted living center, there is a stack of paperwork to sign. It likely includes an arbitration agreement requiring you to take any grievance with the home to an arbitrator instead of the courts.

If you don’t sign it, you may not be admitted. If you do sign it, you may forfeit legal recourse if you’re abused, neglected, not fed, dropped, stolen from, not given medication or encounter other problems.

Iowans entering nursing homes are fragile and will typically sign anything put in front of them, said West Des Moines attorney Tom Slater, whose firm represents people injured in long-term care facilities.  

“Whether or not the nursing home admission personnel explains the documents, the explanation is colored in favor of the nursing home, and the resident is encouraged to sign the document believing that the home has their best interest at heart,” he said.

Giving up your constitutional right to judicial recourse is not in anyone’s best interest. 

Former President Obama knew this. He knew homes entrusted with the care of seniors, frequently for-profit businesses, should not be sheltered from public accountability before a judge and jury. His administration finalized a federal rule prohibiting homes paid by Medicare or Medicaid from requiring that incoming tenants sign these agreements. 

The nursing home industry sued to stop the rule from going into effect. Donald Trump was elected. The Trump administration is crafting a new rule opposed by senior advocates, including Dean Lerner, the former director of the Iowa Department of Inspections and Appeals, which oversees nursing homes. 

Numerous U.S. senators supported Obama's rule. A 2017 letter to the Centers for Medicare and Medicaid Services (CMS) signed by 31 of them urged it not to reverse the prohibition on arbitration agreements that “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.”

But instead of letting the years-long labyrinth process of rule making play out, Congress can address this issue now. The Des Moines Register editorial board asked Grassley his thoughts on legislative action.   

He said it’s worth Congress having more information on how agreements are used, and there are “pros and cons” to arbitration. He also raised questions about the impact of the cost of lawsuits on nursing home care. “And does that increased cost just mean more money in lawyers’ pockets, instead of victims?”

Of course, nursing homes are less likely to be sued if residents are not hurt. The fear of public lawsuits may encourage hiring adequate and trained staff.

Lawyers are not the problem. They help deliver justice for victims when no one else — including the government — stands up for vulnerable Americans.

Grassley can work across the aisle with other lawmakers already crafting legislation related to arbitration in care facilities. This is a bipartisan issue. Both Democrats and Republicans find themselves at the mercy of a nursing home.

This reminds us of the ruling in the landmark 1969 Tinker v. Des Moines schools case before the U.S. Supreme Court, which held that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” 

No Iowans should have to leave their constitutional rights at a nursing home's door. 

Arbitration agreements strip Iowans of right to sue for wrongdoing

West Des Moines attorney Tom Slater knows firsthand how arbitration agreements can rob people of their rights: His firm represents clients injured by nursing home neglect. 

He told a Register editorial writer about a woman who was left alone, fell and sustained serious injuries that required several months in the hospital. 

“When she sought an attorney to file a case in court, she could not do so because buried in the volumes of admission papers that she was required to sign was a 'pre-dispute arbitration' clause,” he said. The arbitrator awarded “a pittance of the medical expenses she incurred" and little for her anguish. The award could not be appealed. 

“At some point in a person’s life, whether they are in the lowest valley or on the highest mountain, they will likely enter a nursing home and will suffer an injury. This would include our legislators and their loved ones," Slater said. "They should ponder this when considering legislation to prohibit pre-dispute arbitration clauses in nursing home admission agreements.”

This editorial is the opinion of the Des Moines Register’s editorial board: Carol Hunter, executive editor; Kathie Obradovich, opinion editor; Andie Dominick, editorial writer, and Richard Doak and Rox Laird, editorial board members.

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Seniors should not have to leave their constitutional rights at the nursing home door