Last month, the federal government signaled its intention to roll back protections critical to the health, safety and welfare of vulnerable nursing home residents. The rule they want to eliminate bans the use of pre-dispute arbitration agreements. These agreements require older adults, people with disabilities and their families to waive their rights to the judicial system before a dispute even arises. Then, any dispute, even abuse or neglect, and regardless of how egregiously they’ve been harmed, is forced into secretive arbitration proceedings.
Typical nursing home claims involve injuries such as pressure sores that lead to infection; amputated limbs; suffocation on bedrails and other restraints; choking;; sexual assault; renal failure and other conditions caused by dehydration; malnutrition; severe burns; gangrene; and painful, immobilizing muscle and joint problems resulting from long-term inactivity. All of these are avoidable conditions that are the result of negligence or even willful misconduct by long-term care facilities.
These forced arbitration agreements are presented to prospective residents and their families during the admission process, an extremely difficult and stressful time. Individuals typically feel compelled to sign because they are under extreme pressure to be admitted and the implied message is they must agree or be refused care. To make matters worse, under the recent government proposal, this message would no longer be implied. Nursing homes could refuse admission to a resident whose family, acting on their behalf, is unwilling to sign away their rights. This holds residents hostage – they must agree to give up their rights in order to have essential care and a place to live.
Arbitration stacks the deck against residents. The contracts typically allow the nursing home to select the arbitrator, the state in which the arbitration will occur and the rules for the arbitration process. There is a strong incentive for arbitrators to find in favor of the facility since this can assure them of repeat business. As a result, residents often lack meaningful ability to hold the nursing home accountable for mistreatment and harm.
Nursing facilities insert pre-dispute arbitration clauses in their contracts to ensure that they will never be held publicly responsible for their actions, and to limit any penalties imposed for wrongdoing. Arbitration proceedings are held behind closed doors and are confidential. The public, including those looking for a nursing home – will never know the nursing home’s full track record ― no matter how bad ― because it is hidden. Arbitration shields poor performing facilities from the negative impact on their reputation, public opinion and pressure that could serve as a deterrent to substandard care.
The U.S. Census Bureau estimates that by 2030, one in every five U.S. residents will be 65 years or older; almost half of these Americans are likely to spend some time in a nursing home. We must stand together to protect the rights and care of frail, at-risk nursing home residents. More Americans must lend their voices to this cause. Tell our policymakers to reinstate the ban on mandatory pre-dispute arbitration agreements that protect nursing homes, but not those entrusted to their care.
Robyn Grant is Director of Public Policy and Advocacy at The National Consumer Voice for Quality Long-Term Care and Remington A. Gregg is Counsel for Civil Justice and Consumer Rights at Public Citizen.