Nursing home patients who experience neglect, abuse or just a general grievance may find it difficult to bring their case to court under a proposed federal policy shift under President Donald Trump’s administration, according to local critics.
The rule change currently under review by the Center for Medicare & Medicaid Services would do away with a rule change adopted late into President Barack Obama’s administration. The rule prohibits nursing homes from requiring residents to sign binding arbitration agreements, oftentimes as a condition of admission, even before any dispute arises.
Area 1 Agency on Aging long-term care ombudsman Suzi Fregeau in Eureka said these types of agreements essentially prohibit patients and their families from taking their dispute to court and instead commit them to a private, controlled mediation process.
“If any problem should develop, whether you lost your shoe or a staff person punched you and you broke an arm, how do you know what you’re agreeing to arbitrate until it happens?” Fregeau said. “You’re giving up your right to representation if you need it.”
Changing the rules
The Center for Medicare & Medicaid Services states its proposal would improve transparency of the arbitration process, reduce “unnecessary” burdens on care providers and better inform nursing home residents of their rights.
The proposed rule change would require any arbitration agreement to be written in “plain language;” the resident must demonstrate that they understand the agreement; the facility must post a notice of its use of binding arbitration that is visible to visitors and residents; and any agreement reached through arbitration must be sent to the Center for Medicare and Medicaid Services for review.
The ban on using arbitration agreements before disputes arise under the Obama administration was challenged in federal court by the nursing home industry group, the American Health Care Association. The court issued a preliminary injunction on the ban on Nov. 7, 2016, effectively halting it. The Center for Medicare and Medicaid Services states that the court’s ruling was what prompted it to consider the rule changes.
Janssen Malloy LLP attorney Amelia Burroughs in Eureka said that California law states nursing homes can’t require residents to sign an arbitration agreement as a condition of admission. But if the federal rule changes, Burroughs said nursing homes will be able to claim federal pre-emption; essentially arguing that federal law outweighs state regulations.
“Never mind that the state law is more protective for nursing home residents, federal law let’s me do it,” Burroughs said, explaining the argument.
The proceedings would be virtually secret, Burroughs said, as there would be no court filings.
Burroughs said that handling these disputes through arbitration is very different than through the court system. For one, the nursing home has the ability to pick the arbitrator, she said, with different arbitrators having different rules on how the process will proceed.
“You get very little discovery,” Burroughs said. “In litigation, the discovery process is the investigation portion of the lawsuit. In arbitration that is really limited. The number of questions you can ask is limited, the number of people you can ask is limited.”
In the past year, Burroughs’ law firm has filed a number of neglect and abuse cases involving nursing home patients. Burroughs said she won’t know until the final rules are published whether they will be able to continue to bring these cases to court in the future.
After being introduced in the June, the center’s proposal underwent a public comment period that ended on Aug. 7.
The Center for Medicare and Medicaid Services is reviewing the more than 1,000 public comments it received, but will not acknowledge or respond to them individually.
The center has three years from June to publish a final rule, but that could occur sooner.
The Chamber of Commerce of the United States of America and U.S. Chamber Institute for Legal Reform both came out in support of the proposal, stating in a letter that arbitration is an “easier and less costly” way to address disputes.
“Arbitration also lowers businesses’ costs of resolving disputes, which creates savings that they can pass on to their customers,” the letter states. “But these benefits can only be realized when parties are free to enter into arbitration agreements before disputes arise; despite arbitration’s overall systemic benefits, parties almost never agree to arbitration in a particular case after a dispute has arisen. For this form of dispute resolution to be available as a practical matter, therefore, pre-dispute agreements are necessary.”
The Times-Standard attempted to contact the owners of the five operating nursing homes in Humboldt County — Brius Healthcare Services and the Southern Humboldt Community Healthcare District — for comment, but did not receive a response by Wednesday afternoon.
The latest proposal has drawn strong opposition from organizations such as the AARP, the National Association of Social Workers and the National Association of State Long-term Care Ombudsman Program, which claim the change will stack the deck against patients.
The AARP argued in its opposition letter that the center does not have the authority under the Nursing Home Reform Act to issue regulations that fail to protect residents.
“However, this proposed regulation instead scales back nursing facility residents’ protections in favor of easing anecdotal claims of administrative burden for nursing facilities, contrary to [the center’s] authority to protect residents,” the letter states.
A group of 17 state attorney generals, including California’s Xavier Becerra, signed an Aug. 7 letter urging the center to reject its proposal. Thirty-one Democratic U.S. senators also signed an Aug. 7 letter urging the center to reject its proposal.
California 2nd District Congressman Jared Huffman (D-San Rafael) was unavailable for comment on Wednesday, according to his Communications Director Alexa Shaffer.
Will Houston can be reached at 707-441-0504.