 |
| Elizabeth Barrow case |
The federal agency that controls more than $1 trillion in
Medicare and
Medicaid funding has moved to prevent
nursing homes
from forcing claims of elder abuse, sexual harassment and even wrongful
death into the private system of justice known as arbitration.
An agency within the
Health and Human Services Department
on Wednesday issued a rule that bars any nursing home that receives
federal funding from requiring that its residents resolve any disputes
in arbitration, instead of court.
The rule, which would affect nursing homes with 1.5 million residents, promises to deliver major new protections.
Clauses
embedded in the fine print of nursing home admissions contracts have
pushed disputes about safety and the quality of care out of public view.
The
system has helped the nursing home industry reduce its legal costs, but
it has stymied the families of nursing home residents from getting
justice, even in the case of murder.
A
case involving a 100-year-old woman who was found murdered in a nursing
home, strangled by her roommate, was initially blocked from court. So
was a case brought by the family of a 94-year-old woman who died at a
nursing home in Murrysville, Pa., from a head wound. The cases were the
subject of
a front-page article in The New York Times last November.
“The
sad reality is that today too many Americans must choose between
forfeiting their legal rights and getting adequate medical care,”
Senator Patrick Leahy, a Democrat of Vermont, said in a statement on
Wednesday.
The
nursing home industry reacted strongly against the change. Mark
Parkinson, the president and chief executive of the American Health Care
Association, a trade group, said in a statement on Wednesday that the
change on arbitration “clearly exceeds” the agency’s statutory authority
and was “wholly unnecessary to protect residents’ health and safety.”
The
new rule on arbitration came after officials in 16 states and the
District of Columbia urged the government to cut off funding to nursing
homes that use the clauses, arguing that arbitration kept patterns of
wrongdoing hidden from prospective residents and their families.
With
its decision, the Centers for Medicare and Medicaid Services, an agency
under Health and Human Services, has restored a fundamental right of
millions of elderly Americans across the country: their day in court.
It
is the most significant overhaul of the agency’s rules governing
federal funding of long-term care facilities in more than two decades.
And
the new rule is the latest effort by the Obama administration to rein
in arbitration’s parallel system of justice that was quietly built over
more than a decade.
In
May, the Consumer Financial Protection Bureau, the nation’s consumer
watchdog, unveiled the draft of a rule that would prevent credit card
companies and other financial firms from using arbitration clauses that
bar consumers from banding together in a class-action lawsuit.
While
Democrats, including Mr. Leahy, have tried to get rid of arbitration
through legislation, their efforts have met resistance from various
industry groups. The efforts by the consumer agency and now Health and
Human Services do not require congressional approval.
Like
other rules put forth by the administration, the rule on nursing homes
that receive federal funding could be challenged in court. But absent
those challenges, the rule is scheduled to go into effect by November.
Only future admissions would fall under the new rule.
The
nursing home industry has said that arbitration offers a less costly
alternative to court. Allowing more lawsuits, the industry has said,
could drive up costs and force some homes to close.
But some government officials and
elder care
lawyers see a different rationale. For corporations, they say,
arbitration also potentially keeps embarrassing practices under wraps.
The
nursing home rule, which was first proposed in July 2015, was aimed at
improving disclosure. The agency began to re-examine the rule after a
chorus of patient groups raised concerns about the widespread use of
arbitration.
The
final version of the rule went a step further than the draft, cutting
off funding to facilities that require arbitration clauses as a
condition of admission.
Lawyers
who work with the elderly say that people are being admitted to nursing
homes at one of the most stressful moments of their lives. Distraught
and often desperate for a room, prospective residents do not fully grasp
what they are signing, the lawyers say.
Sometimes,
that does not matter. Judges are bound by a pair of Supreme Court
decisions, in 2011 and 2013, that blessed the widespread use of
arbitration clauses. Those decisions have made it virtually impossible
to overturn clauses, even those signed by the most vulnerable nursing
home residents.
An
appeals court refused to throw out an arbitration clause signed by a
man who could not read or sign his name, reasoning that “illiteracy
alone is not a sufficient basis for the invalidation of an arbitration
agreement.”
In the last decade, arbitration clauses have affected things like cellphone contracts, employment agreements and
student loans.
But
even as the use of arbitration clauses spread, little was known about
what happened to those who took their chances there. Companies argued
that arbitration offered a simpler, swifter and less expensive
alternative to court, without the headaches and delays.
Those
claims, though, were largely anecdotal because arbitrations are
confidential and there is no federal database that records their
outcomes.
In
a yearlong investigation, The Times tried to pierce the veil, getting
inside the secretive proceedings. To do that, The Times examined records
from more than 25,000 arbitrations between 2010 and 2014 and
interviewed hundreds of lawyers, arbitrators, plaintiffs and judges in
35 states.
The
proceedings bear little resemblance to court. They have been conducted
in the offices of lawyers who represent the companies accused of
wrongdoing.
In
the case of nursing homes, The Times found many troubling examples
where issues of abuse and potential neglect never made it into the
public light because they were blocked from court.
In
May 2014, for example, a woman with Alzheimer’s was sexually assaulted
two times in two days by residents at a nursing home in Lemon Grove,
Calif. A subsequent investigation by the state’s department of public
health found the nursing home “failed to protect” the woman.
But
when her family tried to hold the nursing home accountable in court,
their case was scuttled because of an arbitration clause. Ultimately,
they gave up and settled with the nursing home.
Full Article & Source:
U.S. Just Made It a Lot Less Difficult to Sue Nursing Homes
