You May Lose Rights To Sue Nursing Homes, If Obama’s Rule Is … – Forbes

What recourse will nursing home residents have if they suffer bad conditions, neglect, or abuse? Photographer: Michael Nagle/Bloomberg

Picture the following. Your parent or your grandparent or some other loved one needs to be admitted to a nursing home. You no longer have the energy, time, resources, or wherewithal to care for him and her without help. You’ve heard stories about nursing home residents being mistreated, neglected, or abused. And now the nursing homes that you are applying to require you or your loved one to sign an agreement that you will not sue, even if your loved one gets mistreated or abused. If you sign the agreement, your only option may be “third party arbitration”, whatever that means. If you don’t sign, you may not be able to get your loved one into the right nursing home. What will you do?

Well, in 2016, President Barack Obama signed a Centers for Medicare and Medicaid Services (CMS) rule to help prevent such a scenario from happening. Obama’s rule would prevent any nursing home that receives Medicare or Medicaid funds (which is a lot of them) from enforcing such “no sue” agreements. But now this rule is in jeopardy of being overturned President Donald Trump’s administration. Why?

Here’s what Representative Ted Lieu (D-California) tweeted:

And actress Alyssa Milano:

OK. Trump hasn’t said that he hates grandmothers. Instead, here’s what happened last October. The American Health Care Association (AHCA) along with a group of nursing homes sued CMS and the Department of Health and Human Services for trying to enforce the rule that would prevent nursing homes from preventing nursing home residents and their families from suing nursing homes. Yes, they tried to use a lawsuit to prevent lawsuits.

As Lydia Wheeler described for The Hill, the ACHA contention was that the rule violated the Federal Arbitration Act and overstepped a federal agency’s authority. The U.S. Chamber of Commerce has argued that by allowing costly lawsuits the Obama rule will raise the cost of nursing home care. In an article last November for The Hill, Wheeler described how U.S. District Court Judge Michael Mills of the Northern District of Mississippi blocked enforcement pf the Obama rule until the lawsuit could play out in the courts. Now, CMS under the Trump administration is reconsidering the Obama rule and has allowed until Monday August 7 for public comment on possibly overturning the rule. Turns out a lawsuit may be quite effective to get what you want.

Over 75 consumer groups have banded together to oppose changes to Obama’s rule. The Fair Arbitration Now (FAN) Coalition argued on their web site that retaining the right to sue is important protection for consumers: 

Most people don’t know that forced arbitration clauses are buried in the fine print of many contracts to receive products and services, and even to obtain employment. These contract clauses force people to give up their right to go to court – even if a company harms them or rips them off. Instead consumers are pushed into secret arbitration. In arbitration there is no judge, jury, and decisions are rarely appealable. Arbitrators do not have to follow the law. Civil rights and consumer protection laws can become meaningless in arbitration. That’s why we need a federal law to make arbitration truly voluntary. Eliminating forced arbitration clauses from contracts will give us – consumers and employees – the power to choose court or arbitration after the dispute arises.

This battle comes in the shadow of the fact that the conditions and quality of care at nursing homes are extremely variable, ranging from good to appalling. A study conducted by researchers from UCSF (Charlene Harrington,Helen Carrillo, and Taewoon Kang) and the University of California-Irvine (Brian Olney) published in Health Services Research  found a number of staffing and quality of care deficiencies in many for-profit nursing homes. According to the Centers for Disease Control and Prevention (CDC), each year 1 to 3 million serious infections occur in long-term care facilities with as many as 380,000 people dying as a result. As the U.S. News and World Report described, a study published in the American Journal of Infection Control showed that about 15 percent of U.S. nursing homes were cited for lack of adequate infection control procedures. As an example, here’s an Associated Press report on a bad situation at a nursing home:

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