Sixteen states and the District of Columbia are pressuring the Trump administration to protect nursing home residents’ right to take nursing facilities to court over alleged abuse, neglect, and sexual assault. Attorneys general for the District of Columbia, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New York, North Carolina, Oregon, Pennsylvania, Vermont, and Washington have sent comments to the Centers for Medicare and Medicaid Services (CMS) opposing its proposal to reverse an Obama-era rule that banned nursing homes from putting language in resident contracts that require disputes to be settled by a third-party arbiter rather than a court. The attorneys argue that these types of clauses, known as pre-dispute binding arbitration agreements, can be procedurally unfair to consumers and can jeopardize the fundamental right of Americans to be heard and seek judicial redress for their climax.
When the rule giving residents the right to sue was first promulgated under the Obama administration, the American Health Care Association (AHCA) and a group of nursing homes sued CMS and the Department of Health and Human Services, claiming that the rule violated the Federal Arbitration Act and that the agencies had overstepped their statutory authority in issuing the law. The AHCA said Congress has repeatedly rejected legislation to invalidate arbitration agreements. Under its proposed revisions, CMS said nursing homes would be required to write the arbitration agreements in plain language and explain the agreement to the prospective resident or his or her representative. Residents would also be required to acknowledge they understand the agreement. In November of 2016, a federal judge in Mississippi issued an order temporarily blocking the new rule from taking effect, handing a victory to its opponents. After this ruling, CMS said that it would reconsider the rule.
However, consumer groups and state attorneys general are fighting on. In their comment, the attorneys general stated that they do not oppose mutually agreed upon arbitration agreements that are reached to resolve a dispute at the time the dispute arises. Rather, 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…residents’ basic right of access to justice,” the attorney general for the District of Columbia 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.”
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