The Center for Medicare & Medicaid Services (CMS) is considering a proposal that would allow forced arbitration clauses in nursing home and long-term care (LTC) contracts. In comments submitted to CMS, advocates fighting the proposal contend that if such clauses are allowed, vulnerable older Louisianans entering nursing homes would be stripped of their legal rights in the fine print of admission agreements.
“Louisiana’s nursing home residents and their families should not be forced to sign away their rights in the fine-print of their admission agreements,” said Sophia Mire, staff attorney at the Advocacy Center of Louisiana. “Nursing homes must be held accountable in court when they fail to protect our loved ones from abuse and neglect.”
CMS has proposed to repeal a regulation that was finalized just last year that prohibits the use of forced arbitration clauses in nursing home and LTC contracts. Forced arbitration clauses strip residents and their families of their day in court to address negligence or wrongdoing, contend opponents of the proposal. Instead, disputes are forced into a secretive system before a private arbitrator, often chosen by the nursing home, with no appeal if the arbitrator ignores the facts, or gets the law wrong.
CMS adopted the rule last year after examining years of data showing abuse and neglect in nursing homes and LTC facilities. CMS also concluded that forced arbitration clauses contribute to a lack of accountability and shield wrongdoing from the public spotlight. CMS conducted a literature review and also reviewed court opinions involving arbitration in LTC facilities. Many of the articles reviewed “provided evidence that pre-dispute arbitration agreements were detrimental to the health and safety of LTC facility residents.”
“Everyone should be outraged that the Administration is proposing to strip legal rights from fragile seniors and their families during the incredibly stressful time when a loved one is entering a nursing home,” said Lauren Saunders, associate director of the National Consumer Law Center.