Imagine your elderly mother had a stroke and upon discharge from the hospital she needs to go directly to a nursing home. As you’re admitting her, the nursing home makes you sign an agreement giving up all of your legal rights in the event of a future dispute.
You might not like it, but what choice do you have? If you refuse to sign, she’ll be left with nowhere to go for the care she needs.
Unfortunately, this is the harsh reality facing families in this stressful, often dire situation – and it’s one that will continue under regulations proposed by the federal Center for Medicare and Medicaid Services.
That’s why, as an original author of the Federal Nursing Home Reform Act that granted the center regulatory authority over nursing homes, I strongly urge it to ban forced arbitration because its sole function is to evade accountability.
Obviously, no one enters a nursing home expecting to be mistreated or a victim of malpractice. And most nursing homes provide high-quality care. But not all do, and not all of their problems are caught or corrected by regulators. In fact, more than one of every three patients admitted to a nursing facility has suffered a medical error, infection or other serious injury. So when patients are victims of negligence, wrongdoing or abuse, they must have the opportunity to pursue justice, not only as their right, but as an indispensable means of exposing poorly run facilities and forcing them to fix what’s wrong.
Predispute arbitration clauses deny patients and their families this fundamental right – an injustice made all the more egregious because they are almost always signed under duress.
And it gets worse: If your mother suffers abuse or neglect and you choose to do something about it, you will enter a kangaroo court in which the outcome is rigged against you. Not only does the nursing home choose the arbitrator (who then has a financial incentive to side with the home to obtain repeat business), but you have no right to appeal the decision of the arbitrator, who may have little or no legal training.
Plus, the proceedings are kept secret, so none of the problems that caused your mother harm will ever see the light of day. In fact, you are often under a gag order banning you from raising these issues with outsiders, including state inspectors.
Simply put, this makes a mockery of the law I helped write and of my decades of work in Congress to strengthen patient rights.
While the Center for Medicare and Medicaid Services acknowledges this, and while its proposed rules purport to enhance residents’ quality of care, the specific criteria for binding arbitration agreements places a nearly insurmountable roadblock for families seeking justice.
None of the organizations opposing predispute forced arbitration oppose voluntary arbitration after a dispute. While some plaintiffs may want their day in court, others may choose arbitration as a means of reducing the cost and increasing the speed of a remedy. What matters is that this decision occurs after harm has been done, with both sides on equal footing, jointly determining ground rules and selecting an independent arbitrator.
No one should accept the denial of justice and evasion of accountability that would result from the proposed rule.
Henry A. Waxman, who represented California’s 33rd Congressional District from 1975 to 2015, is a past chairman of the House Energy and Commerce and Oversight and Government Reform committees and is now a consultant for the American Association for Justice, the advocacy group for trial lawyers. He can be contacted at firstname.lastname@example.org.