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The Hill: 16 states, DC push Trump admin to protect right to sue nursing homes

08.09.2017

By Lydia Wheeler -

The District of Columbia and 16 states are pushing the Trump administration to protect nursing home residents’ right to take facilities to court over alleged abuse, neglect and sexual assault.

D.C. Attorney General Karl Racine and state attorneys general for California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New York, North Carolina, Oregon, Pennsylvania, Vermont and Washington sent comments to the Centers for Medicare and Medicaid Services (CMS) opposing its proposal to reverse coarse on an Obama-era rule that banned nursing homes from putting language in resident contracts that require disputes to be settled by a third-party arbitrator rather than a court.

“Pre-dispute binding arbitration agreements in general can be procedurally unfair to consumers, and can jeopardize one of the fundamental rights of Americans; the right to be heard and seek judicial redress for our claims,” the attorneys said in their comments.

“This is especially true when consumers are making the difficult decisions regarding the long-term care of loved ones. These contractual provisions may be neither voluntary nor readily understandable for most consumer. 

CMS announced its plan in June to revise the rule and allow nursing homes to use the provisions, known to lawyers as pre-dispute arbitration agreements, so long as the agreements are written in plain language and are explained to the prospective resident. The resident must also acknowledge that they understand the agreement they are signing. 

The attorneys general said they do not oppose mutually agreed upon arbitration agreements that are reached to resolve a dispute at the time the dispute arises; 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 District residents’ basic right of access to justice,” Racine 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.”

The American Health Care Association and a group of affiliated nursing homes have been fighting back against the rule, which was blocked by a Mississippi judge in November. The groups claim arbitration is faster and cheaper than litigation and that banning the practice will increase the cost of nursing home care. 

The agency is reviewing public comments, which were due Monday.