Feds may limit right to sue nursing homes

Shirley Gooding, a physical Therapy Aid, helps William Rexroat, a WWII Navy veteran exercise during a physical therapy session at the Quincy Veterans Home February 17, 2005 in Quincy, Illinois. (Photo by Scott Olson/Getty Images)
Shirley Gooding, a physical Therapy Aid, helps William Rexroat, a WWII Navy veteran exercise during a physical therapy session at the Quincy Veterans Home February 17, 2005 in Quincy, Illinois. (Photo by Scott Olson/Getty Images)

AUSTIN (KXAN) – The Trump administration is looking to undo an Obama-era rule that could limit legal recourse for nursing home residents who allege abuse, sexual assault and neglect.

Centers for Medicare and Medicaid Services (CMS) plans to strip nursing home residents and their families of the right to go to court over those issues. It is not clear how soon the changes would go into effect.

The rule that would be eliminated, established by the Obama Administration, “prohibited nursing homes that accept Medicare or Medicaid funds from including language in their resident contracts requiring that disputes be settled by a third party rather than a court,” according to The Hill.

CMS reconsidered the rule after a federal judge stopped it from taking effect. Judge Michael Mills, of the U.S. District Court for the Northern District of Mississippi, said the rule should have been passed into law by Congress, rather than established by a federal agency.

Reduced power in arbitration

If the Trump administration gets rid of the aforementioned rule, a nursing home would be able to require all proceedings be held in third-party arbitration, instead of court.

Arbitration is a private and simplified version of court litigation. It involves the accused, the accuser, their attorneys and an impartial mediator.

Unlike in a court of law, arbitration is informal, quick and relatively inexpensive. However, there are significant limits on consumers’ ability to get justice. Attorneys have less power, the evidence and discovery process is limited, and there is no right to appeal.
Because of these limits, businesses have long preferred arbitration.

A 2015 study by the Economic Policy Institute found that in the last 25-30 years, the power balance between companies and citizens has shifted in favor of businesses and the use of arbitration.

“[I]t has become increasingly commonplace for corporations to insert arbitration clauses into their contracts with customers and employees,” according to the study.

Instead of facing off in court, arbitration makes it so consumers “are required to take their complaints to a privatized, invisible, and often inferior forum in which they are less likely to prevail—and if they do, they are less likely to recover their due,” the study states.

Mark Parkinson, the president and CEO of the American Health Care Association, which led the Mississippi suit decided by Mills, believes arbitration is not harmful.

“The merits of allowing individuals in our centers and their families this legal remedy are clear,” Parkinson said in a news release when the suit was filed.

Parkinson said that “study after study shows that arbitration is fair and speeds judgments in a cost-effective manner that benefits those injured more than anyone else.”

On the other side of the debate is the Fair Arbitration Now Coalition (FAN), a group of 78 organizations that opposes companies forcing arbitration upon consumers and employees. FAN believes contracts should instead let people choose between arbitration and court.

About half of the organizations in FAN, including Austin-based Texas Watch, came out against the Trump administration’s plans this week with a letter to CMS.

“Placing a parent or loved one in a nursing home is already one of the most difficult things anyone will ever have to do in life,” according to the letter. “But forcing the patient or family member to then sign something that violates the resident’s legal rights should they suffer future abuse or serious neglect is a horrific thing to do to families.”

The letter continues, “this proposed rule is a disturbing new direction for CMS, which should be protecting patients, not making it easier for facilities to harm them and cover it up.”

Troubling records

Here in Texas, nursing homes need considerable improvement. A KXAN analysis of 1,162 Texas care facilities found nearly half were rated as “below average” or “much below average” by CMS.

Nationwide, over 1,000 nursing homes have been cited for mishandling suspected sexual abuse, according to a February report from CNN’s Investigative Unit. There were also 251 sexual abuse complaints in Texas in fiscal year 2015, the report found.

The Centers for Disease Control and Prevention says there are 1-3 million cases of serious infections in American nursing homes every year among the 4 million residents nationwide. Those infections lead to 380,000 deaths annually.

What’s next

CMS stopped receiving public input on the rule on Monday. It is reviewing the hundreds of comments it received, but has not said when it will make a final decision.

Texas will start cracking down on nursing home

Next month, a new law will take effect in Texas that cracks down on violations and abuse in the state’s nursing homes.

The legislature took action after records showed the state’s Department of Aging and Disability Services only enforced fines and license penalties in 40 out of 17,466 violations.

This new law, led by Sen. Charles Schwertner (R-Georgetown), will make it more difficult for nursing homes cited for repeat violations to avoid fines and penalties.

A January report from AARP Texas said the quality of nursing homes in the Lone Star State is “shamefully poor.” It cites 454 violations of the highest severity level, meaning they put residents in “immediate jeopardy.

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