Federal Government Initiative Strips Rights from Nursing Home Abuse Victims

The Federal Government has taken steps to stop nursing home residents and their families from seeking justice for abuse or neglect at the hands of nursing home workers. Instead of taking a local jury deciding who to hold responsible for the abuse and neglect, the Federal Government wants arbitrators to make those decisions. This is not what the Constitution envisioned when the founders enshrined the right to a jury trial in the 7th Amendment.

CONSUMER GROUPS WHO ARE FIGHTING BACK

In June, when the Centers for Medicare and Medicaid Services (CMS) announced that they planned to do away with a rule that protected nursing home residents, the public spoke out. The rule, which stemmed from the Obama era, forbade nursing homes that accept Medicare or Medicaid from including contract language that required disputes to be settled by a third party outside of court.

The current administration wants to overturn that rule, leaving nursing home residents open to predatory attacks, negligence, and sexual abuse without recourse in your local court and in front of juries.

More than 75 advocacy, consumer, and health groups have joined forces to form the Fair Arbitration Now Coalition in an effort to prevent CMS from doing away with this essential protection for elderly citizens.

According to Remington Gregg, who serves as counsel for civil justice and consumer rights at Public Citizen, the provisions – officially known as pre-dispute arbitration agreements – give nursing homes far too much power over their elderly patients and the family who loves them.

Gregg said: “We’re talking about everything you may have a problem with — abuse, neglect, sexual assault, a wide variety of things — they are now saying you are waiving yourright to full justice.”

Waiving the right to something that should come standard for every citizen of this country – a right the constitution specifically protects.

THE REASON BEHIND THE RECONSIDERATION

CMS’s decision to reconsider the rule came in the wake of an order issued by a Mississippi federal district court judge in November, which temporarily stopped the rule from taking effect. CMS, along with the Department of Health and Human Services, had been sued by the American Health Care Association (AHCA) and a collection of nursing homes for violating the Federal Arbitration Act and crossing the lines of their statutory authority by issuing the law. The AHCA claimed that Congress had consistently rejected legislation that would make arbitration agreements invalid. Thus, in June, the case was put on hold so that CMS could reconsider and revise the rule.

The Fair Arbitration Now Coalition has engaged in a full effort to salvage the rule.

According to AARP, which is part of the coalition, CMS does not have the statutory authority to do away with a protective rule that was written properly. The nonprofit group stated: “To the extent that CMS may be relying on the authority to promulgate regulations ‘to promote the effective and efficient use of public moneys’ the regulations still need to be for the benefit of Medicare and Medicaid nursing facility residents and not to their detriment.”

But CMS’s proposed revisions to the rule contain the organization’s claim that “arbitration agreements are, in fact, advantageous to both providers and beneficiaries because they allow for the expeditious resolution of claims without the costs and expense of litigation.”

Those who oppose the rule change are considering legal action. Here at Hare Wynn, we certainly hope that the result will turn out in favor of the elderly who need protection.