Advocate groups are rallying to protect an Obama-era rule that would give patients and their families the right to sue long-term care facilities. The Trump administration has threatened to roll back the rule and implement revisions that would make filing such suits virtually impossible.
The rule specifically states that facilities that rely on Medicaid or Medicare may no longer use forced arbitration clauses in their patient agreements. Forced arbitration, which nearly all facilities include in their standard contract, essentially prevents consumers from taking an organization or business to court, requiring them to hash out their problems in private.
The Centers for Medicare and Medicaid Services (CMS) under President Trump first proposed the rollback in June, just months after the American Health Care Association (AHCA) and a group of nursing homes challenged the original rule in court. In November, a district court judge in Mississippi sided with the AHCA, preventing the policy from being implemented. According to The Hill, Judge Michael Mills stated that he was sympathetic to nursing home patients but couldn’t abide a federal agency overstepping its authority. The AARP, which backed the initial Obama-era rule when it was first introduced, issued a stern rebuke on Thursday, citing “grave concerns.”
“We are alarmed that CMS’ decision…will very likely have dangerous and harmful impacts on nursing facility residents, as well as their families, and place them at even greater risk than they faced before[…],” David Certner, AARP Legislative Counsel & Legislative Policy Director, wrote in a letter on Thursday. “…In short, pre-dispute binding arbitration agreements are wholly inappropriate where health and life are at risk.”
In June, CMS stated that it would consider revisions to the original rule that would prevent patients from filing lawsuits while also requiring long-term care facilities to be more transparent about their rules. The public comment period, during which advocacy groups can submit statements on the revisions and argue their positions, closes Monday evening. At that point, CMS will review public arguments and issue a final rule.
Long-term care advocates have so far been pleased with the proposed changes. Proponents of the original rule, however, remain critical of the revisions and have launched a last-ditch effort to keep the initial measure in place.
“We’ve urged them to continue implementing the rule as it is on the books,” says Remington A. Gregg, counsel for civil justice and consumer rights at Public Citizen. “It’s based on extensive analysis and expert opinion. If they change it, they’re going to have to explain why they’re going against all that expertise and analysis, and why they’re removing critical protections for seniors.”
In a letter to CMS on Monday, Gregg and Public Citizen Vice President for Legislative Affairs Lisa Gilbert added, “Our strong objection to CMS’s proposal to reverse commonsense protections for seniors and other residents of [long-term care centers] is founded on a principle that while arbitration may be a preferred process for some, it should be not a required option for all. Forcing [long-term care] residents to give away their access to justice in court at a traumatic time preys on residents’ and their families’ vulnerabilities.”
Certner added that the impact of the rule changes could be “exacerbated” if the Trump administration’s proposal to cut Medicaid funding were also enacted.
“Reduced payments to nursing facilities could worsen nursing home quality and increase the chances that residents may be in a dispute with a facility and need to access the court system to seek redress,” he wrote.
— Ted Lieu (@tedlieu) August 6, 2017
The U.S. Chamber of Commerce previously spoke out in favor of forced arbitration clauses, like those that the Obama-era rule aimed to curtail. “For many individual disputes, litigation in court is simply impractical,” officials stated back in 2015, according to The Hill. They claimed that the high costs and complex court system were a detriment to patients.
Patient advocates argue, however, that private arbitration actually costs more than court battles, and often leaves patients responsible for a company’s legal fees. Not only that, but it does nothing to address the high rate of elder abuse, injury, or wrongful death occurring in long-term facilities across the country, as most arbitration is done in private and never reaches the public.
“It’s a straw man argument,” Gregg says. And while some long-term care facilities may face financial consequences or close their doors, holding “bad actors” accountable is more important. “How can you justify the type of callousness they want to inflict on senior citizens?” he adds.