If you have a family member – especially one of your parents – who lives in a nursing home, hopefully you never will have the need to file a lawsuit against them for negligent or abusive treatment.
But under a newly-proposed rule change by the Centers for Medicare and Medicaid Services, (CMS), you wouldn't even have that legal right available to you as an option.
Last fall, prior to the election of President Trump, the CMS enlisted a rule stating that any nursing home that receives federal funding – which means most of them – would not be allowed to force a person into mandatory arbitration to settle any legal disputes. (Prior to that time, nursing home residents or their guardian were required to sign contracts that stripped them of any rights that had to file a lawsuit against a nursing home.)
But right now, the CMS, which is now being run by the newly-appointed Trump regime, wants to rescind rule and go back to forcing people into arbitration.
Arbitration is a negotiation in which a professional arbitrator, who supposedly has no connection to either party involved, listens to both sides of a story and then hands down a ruling which the consumer is forced to accept. However, when you consider that the arbitrator's fee is just about always paid for by the business entity that owns the nursing home, you can see why this is a major problem for consumers.
Mandatory arbitration clauses are used in a lot of contractual agreements. They are in place to protect the interests of big business, and to reduce or eliminate their exposure to a potentially costly lawsuit. You've likely signed something like this yourself if you have a contract with your credit card company, phone or internet provider, mortgage lender and a host of other financial services providers.
These types of clauses are hidden in the small print toward the bottom of the agreement, and essentially give you a ‘take it or leave it' option. Sign this, or we have no agreement. And in an instant, you've given away your legal and constitutional right to take your case to court for a trial – you're bound to using an arbitrator, like it or not.
Attorney Sheba Abraham is a Partner at our law firm, Goldberg Noone Abraham, and is well versed in nursing home negligence and abuse, and other related legal fields. “If the CMS reverses this ruling, it will be devastating to those seeking justice against a nursing home, especially the elderly”, she points out.
Many formidable consumer advocacy organizations are lining up in opposition to the proposed change, including the AARP, the U.S. Chamber of Commerce and others. There has been a group formed, called FAN for Fair Arbitration Now, and it has been reported they are considering their legal options regarding filing a lawsuit to stop the CMS from reverting back to the previous rule. There also are those who feel that the CMS has no legal authority to revise the rule, especially if they are attempting to do so based solely on the fact that they are now under control of the Republican party, or ‘under new management' essentially.
“Changing this contractual clause simply because ‘there's a new sheriff in town' and they're trying to keep large corporations and insurance companies from being open to lawsuits is not a sufficient reason”, says Attorney Abraham. “Many prominent consumer protection organizations feel the CMS does not have the legal authority to amend the contractual language – it will be very interesting to see how this plays out.”
In a column in the Los Angeles Times, a reporter calls the potential action by the CMS “an unfair practice that favors the interests of business over those of consumers”, and goes on to say, “in the case of nursing homes, (this) involves some of the most vulnerable members of society.” Public Citizen, the consumer advocacy group, has not held back on their position. Their president calls the possible back-pedaling a “heartless and vile act.”
Nursing home abuse and negligent nursing home care are very real, and happen quite frequently in Southwest Florida. Hopefully the Centers for Medicare and Medicaid Services will not be able to, (again), take away your rights to a fair trial in the event you or a loved one are victimized.