"Forced arbitration clauses in nursing home agreements 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," the Senators wrote in a letter Monday to CMS Administrator
The Senators, joined on the letter by 29 of their colleagues, went on to write, "Therefore, we strongly urge CMS to fully protect many of our nation's most vulnerable individuals by withdrawing this proposal and sustaining and fully enforcing the existing restrictions on pre-dispute arbitration clauses in long-term care facility contracts."
You can read the full letter below or by visiting https://www.franken.senate.gov/files/letter/170807CMSLetter.pdf.
RE: Revision of Requirements for Long-Term Care Facilities: Arbitration Agreements (CMS-3342-P)
Dear Administrator Verma:
We are writing to oppose the
Forced arbitration clauses in nursing home agreements 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. 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. As a result, victims and their families are frequently denied any accountability for clear instances of wrongdoing.
Consider the story of
Forced arbitration is also shrouded in secrecy, which jeopardizes patient safety and shortchanges families of information that may influence their care decisions. Between the confidentiality requirements contained in many forced arbitration agreements and the secretive nature of the arbitration proceeding itself, nursing homes use forced arbitration to shield themselves from accountability to the courts and the public eye. This allows nursing homes to cover up widespread wrongdoing and prevents potential residents and their families from being fully informed of a facility's practices or reputation. This is especially troubling as recent reports have revealed that residents of nursing homes can be particularly susceptible to physical and sexual abuse. With Medicare and Medicaid spending over
CMS first acknowledged the significant negative impact of forced arbitration agreements in
In 2015, 34 Senators wrote to CMS in response to its initial proposal, commending the agency for acknowledging the severe harms associated with forced arbitration, but also raising concern that the steps CMS had initially proposed were insufficient to protect the rights of residents. CMS agreed, and issued a final rule prohibiting long-term care facilities that accept reimbursement from Medicaid or Medicare funds from using pre-dispute arbitration in their resident admission agreements.
The current CMS proposal, issued by
The new rule reinstates the ability of nursing homes to require forced arbitration agreements, yet purports to provide important-but completely insufficient-patient protections aimed at increasing transparency of a forced arbitration agreement. For example, the new rule would require that forced arbitration agreements be written in "plain language" and that residents acknowledge that they understand the agreements before signing. 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. 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 current proposal would also override existing state law protections aimed at protecting nursing home residents from the enforcement of one-sided contracts more broadly. CMS' proposed overreach would completely eliminate resident choice on the issue of forced arbitration, and actually reinforces the facilities' superior bargaining power over residents during the admissions process - a harm that CMS acknowledged two years ago.
Perhaps most alarming in the current proposal is the elimination of the current resident protections which prevent a nursing home from forcing residents to sign arbitration agreements as a condition of admission, including, as the current proposal suggests, as a condition of continued residency. This could permit the most unscrupulous facilities to threaten current residents with removal from a facility for failure to sign a forced arbitration agreement.
Finally, the current proposal would undermine the objectives of CMS's recently finalized rule to modernize the requirements for long-term care facilities. If nursing homes can use forced arbitration to cover up widespread wrongdoing and avoid public scrutiny, CMS and state regulators will be unable to ensure compliance with newly-established requirements, particularly those aimed at preventing elder abuse.
For the above stated reasons, we maintain that only a voluntary, post-dispute arbitration agreement that is entered into after a resident has considered all their legal rights will ensure accountability and safety for nursing home residents. Therefore, we strongly urge CMS to fully protect many of our nation's most vulnerable individuals by withdrawing this proposal and sustaining and fully enforcing the existing restrictions on pre-dispute arbitration clauses in long-term care facility contracts.
Read this original document at: https://www.franken.senate.gov/?p=press_release&id=3750