Sen. Al Franken (D-MN) is leading the effort to stop Trump from abandoning an Obama era rule that allowed residents of nursing homes to sue facilities when they were abused.
Sens. Franken and Ron Wyden wrote to the administrator of the Centers for Medicare and Medicaid Services:
We are writing to oppose the Centers for Medicare & Medicaid Services’ (CMS) proposal to reverse course on a critical aspect of the agency’s recently finalized rule, Reform of Requirements for Long-Term Care Facilities (CMS-3260-P), which made a number of long-overdue improvements to the requirements for long-term care facilities and nursing homes participating in Medicare and Medicaid programs. Specifically, the latest CMS proposal would reverse a prohibition on long-term care facilities’ use of pre-dispute, mandatory (“forced”) arbitration clauses in their resident admission agreements. The decision to admit yourself or a loved one into a long-term care facility is already an extremely difficult one; nursing home residents and their families shouldn’t also be forced to sign away their fundamental rights in order to access the long-term care they require. We strongly urge you to reconsider this reversal and protect the rights of American seniors and their families by fully enforcing the existing CMS restrictions on pre-dispute arbitration clauses in long-term care facility contracts.
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.
The current CMS proposal, issued by President Trump’s administration, to roll back this critical protection once again places residents’ health and safety at significant risk, and leaves potential residents and their families in the dark about facilities’ past negligence and abuse.
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.
Trump wants to make it easier for nursing homes and long term care facilities to cover up abuse and mistreatment of residents by taking away the ability of those who are abused to sue and instead forcing them to participate in arbitration. Those who commit crimes against their residents would no longer be held responsible in a court of law.
Elections have consequences, and one of the consequences of having Trump as president is that the rules are being tilted in favor of nursing homes and giving fewer areas of recourse if they are abused or neglected. This is one of the many areas where Americans should be thankful that Democrats like Al Franken are standing up to Trump.
Mr. Easley is the founder/managing editor and Senior White House and Congressional correspondent for PoliticusUSA.Jason has a Bachelor’s Degree in Political Science. His graduate work focused on public policy, with a specialization in social reform movements.
Awards and Professional Memberships
Member of the Society of Professional Journalists and The American Political Science Association