Two weeks ago a nursing home arbitration bill was signed into law by the Trump administration. One week later, the Human Rights Watch sounded off about its severe ethical implications.
The government regulatory service for nursing homes, the Centers for Medicare and Medicaid Services (CMS) replaced a key 2016 rule regarding nursing home residents’ access to the courts. Under the new nursing home arbitration bill, nursing facilities will now be able to require residents to sign an arbitration agreement as a condition for entry.
An arbitration agreement is a legally binding contract that waives the signer’s seventh amendment right to trial and instead requires all disputes to be resolved through the process of arbitration. Arbitration is a procedure that has no state or federal regulations in its execution and simply features a paid arbiter, often paid by the company arranging the arbitration, who does not have to be legally trained, at a location dictated by the contract to resolve the issue. When arbitration is concluded, the arbiter’s decision is binding and there is no appeal process.
Arbitration has been used historically to settle disputes between businesses without involving the courts but has since been expanded to encompass business-business interactions, company-client disputes, and employer-employee interactions. Proponents of the system argue that the process is less taxing financially on individuals with little or fixed incomes. Opponents have argued that arbitration can be impossible for individuals to get to because the company sets the location and it is arguably biased since the company pays for the arbiter.
In the event of abuse, neglect, or mistreatment in a nursing home, human rights organizations have argued that the new nursing home arbitration bill will not give residents a fair platform to be heard from.
One of the cases cited by the Human Rights Watch as evidence that arbitration does not work was the case of Sister Irene Morissette. This 87-year-old former nun was living at Chateau Vestavia when she was sexually assaulted by a member of the staff. Despite clear evidence of a locked door being opened with a staff key, semen stains, and internal injuries consistent with sexual assault, because the 87-year-old woman with dementia had signed an arbitration agreement before she was allowed to reside at Chateau Vestavia no legal action could be taken. Additionally, in arbitration, the arbiter decided that Sister Morissette’s claim was unfounded after the 87-year-old was unable to refute what attorney Cameron Hogan called “hearsay, rumors, and speculation” alleging that the evidence of Morissette’s assault merely came from laundering her garments and sheets.
Unfortunately, as with almost all arbitration agreements, any appeals to arbitration must also be settled in arbitration and if the individual believes that the case does not belong in arbitration that too must be settled in arbitration where an arbiter may deny the request simply to profit from a guaranteed second arbitration.
For these reasons, the CMS decided in 2016 that arbitration was “fundamentally unfair” and “residents should have a right to access the court system if a dispute with a facility arises.”
However, when CMS was called to defend the nursing home arbitration bill that they now endorsed under their new administrator, Seema Verma, CMS claimed this change will protect older people, saying, “This final rule supports residents’ rights to make informed choices about important aspects of their health care,” a statement the Human Rights Watch called “disingenuous.”
Unfortunately for the millions of elderly residents, the nursing home arbitration bill is becoming law and will take effect in September of this year. After that time there will be no legal consequence for removing or refusing to house residents who do not sign mandatory arbitration agreements. For many who live in areas where nursing homes are few and far between this will mean having to choose between being able to give their loved ones the care they deserve but denying their rights, or keeping them at home and risking inadequate care.
For more information about the legal and financial exploitation of elderly residents visit the National Association of Nursing Home Attorneys’ Financial Exploitation Page.