Democrats reintroduced federal legislation aimed at limiting the use of forced arbitration clauses, arguing they prevent Americans from seeking justice through the court system. U.S. Sens. Al Franken, D-Minn., and Patrick Leahy, D-Vt., along with U.S. Rep. Hank Johnson, D-Ga., introduced the Arbitration Fairness Act of 2017.

The legislation, previously introduced in 2011 and 2015, would eliminate forced arbitration clauses in employment, consumer, civil rights and antitrust cases. The Arbitration Fairness Act, like the Federal Arbitration Act’s original intent, would require agreements to arbitrate employment, consumer, civil rights or anti-trust disputes be made after the dispute has arisen. The bill would not prohibit arbitration, but instead ensure that individuals have a meaningful choice about how to proceed with their claim.

“For years, I’ve been fighting to re-open the courtroom doors to consumers, workers, and small businesses in Minnesota,” said Franken, a member of the Senate Judiciary Committee. “Our legislation, the Arbitration Fairness Act, would help restore everyday Americans’ right to challenge unfair practices in court and ensure meaningful legal recourse.

“We’re at a point where big corporations can write their own rules and insulate themselves from liability for wrongdoing. That needs to change.”

“Forced arbitration closes the courthouse doors to Americans wishing to seek justice for a variety of civil claims, including sexual harassment and workplace discrimination,” Johnson said. “These arbitration clauses are often unwittingly entered into by consumers when they sign everyday contracts such as cell phone, car rental, credit card and nursing home agreements to name a few.”

The Georgia congressman argues forced arbitration undermines fundamental rights and protections guaranteed by the Constitution, federal and state law.

Contrary to popular belief, arbitration decisions are final, binding, non-appealable, and strongly in favor of corporations,” he said. “The result is a secretive and rigged process that prevents citizens from exercising their fundamental 7th Amendment right to a trial by jury.”

Leahy agreed.  “These dangerous provisions force us to abandon our Constitutional right to protect ourselves in court, and instead send hardworking Americans to face wealthy corporations behind closed-doors in private arbitration,” he said. “This must change.”

 

 

 

Mcknight’s reported that the family of a deceased Kentucky nursing home resident will not have to arbitrate a dispute with the facility following a federal court’s ruling. The Kentucky case involves the son of Judith VanArsdale, a former resident of a Preferred Care facility. He filed a suit in state court claiming her death was caused by negligence.

Preferred Care filed a case in federal court seeking an order to compel arbitration of VanArsdale’s claims.  The facility where VanArsdale lived was taken over by Preferred Care two years after she was admitted. As part of that transition VanArsdale’s son, who had power of attorney, signed an arbitration agreement on her behalf.

The state court found that the arbitration agreement signed by VanArsdale’s son was not enforceable since Kentucky law did not give him authority to enter such an agreement on his mother’s behalf. The court also stayed the provider’s federal action pending the conclusion of the state suit. Preferred Care then sought an injunction from the U.S. District Court for the Eastern District of Kentucky.

The U.S. Court of Appeals for the Sixth Circuit agreed with the District Court’s decision to decline the provider’s injunction, citing the previous opinion that VanArsdale’s son lacked the authority to sign the arbitration agreement. The appeals court’s ruling puts the federal case on hold until the state case is resolved. This is the second arbitration-related court case involving Preferred Care in recent weeks. The Sixth Circuit last Wednesday denied a request from a resident’s estate seeking to appeal a lower court decision that required them to arbitrate their dispute.

Arbitration clauses in nursing home agreements attempt to include wrongful death but the majority of states do not hold that the beneficiaries are bound by the agreement.  The Pennsylvania Supreme Court has recently addressed this issue in Taylor v. Extendicare Health Facilities, Inc., 147 A.3d 490 (Pa. 2016). In that case, the resident’s family members sued the nursing home for the wrongful death of their loved one and as representatives of the resident’s estate.

In the wrongful death action, the plaintiffs sought compensation for the emotional harm they sustained from losing their loved one prematurely. The survival suit relates to the resident’s compensation for pain and suffering and other harms sustained from the neglect.

The agreement between the resident and the nursing home contained an  arbitration clause that covered any resident’s suit against the nursing home. However, this clause applies to the survival action only, but not to the wrongful death suit filed by the nonparties to the agreement.

The wrongful death action must go to court. The survival action goes to arbitration.

The Court reasoned that –

“We recognize that Rule 213(e) is a procedural mechanism to control case flow, and does not substantively target arbitration. However, the Supreme Court directed in Concepcion that state courts may not rely upon principles of general law when reviewing an arbitration agreement if that law undermines the enforcement of arbitration agreements. We cannot require a procedure that defeats an otherwise valid arbitration agreement, contrary to the FAA, even if it is desirable for the arbitration-neutral goal of judicial efficiency. See Concepcion, 563 U.S. at 351, 131 S.Ct. 1740 (“States cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons.”). Declining to bifurcate the wrongful death and survival actions against Extendicare in the interest of efficiency would nullify the ADR Agreement, a result not permitted by the Supreme Court’s FAA jurisprudence. …. Collectively, Moses H. Cone, Dean Witter and KPMG instruct that the prospect of inefficient, piecemeal litigation proceeding in separate forums is no impediment to the arbitration of arbitrable claims. Indeed, where a plaintiff has multiple disputes with separate defendants arising from the same incident, and only one of those claims is subject to an arbitration agreement, the Court requires, as a matter of law, adjudication in separate forums.”

 

The Star-Tribune had an article about one family’s fight for justice for their neglected dad.  Gerald Seeger was a resident of an assisted living facility, Lighthouse of Columbia Heights.  The facility failed to respond promptly when Seeger, repeatedly vomited and screamed for help while pointing to his badly swollen stomach. After hours of suffering, Seeger died of complications related to a common hernia. State investigators later cited the facility for failing to provide timely medical care.

In 2014 when Joan Maurer arrived at her father’s room at Lighthouse. She was shocked by what she found. Her father, a florist who just a week earlier had been laughing and stomping his foot to old-time music, had turned ashen and was vomiting in plastic cups, she said. Photographs from that day show that his stomach had swollen like a balloon.  Despite Seeger’s visible suffering, the staff had not called for emergency help.

“I knelt by his side, grabbed his hand and said, ‘Dad, I’ll get you to a hospital.”  Maurer called 911, and on the ambulance ride to the hospital, Seeger rated his pain as a “10 out of 10” on the pain scale, state records show. “I was horrified,” Maurer said. “I never want to see another human being in that much pain for as long as I live.”

Investigators from the state Department of Health later found multiple lapses in Seeger’s care. Despite a history of hernia problems, staff at the senior home failed to follow a physician’s instructions and notify medical professionals immediately if he had any pain or tenderness in the groin area, state records show. On the evening and overnight shift before he died, Seeger complained of stomach pain and vomited; but such symptoms were not promptly reported to a nurse, state investigators found.

His daughter had a strong legal case so she sued over the sudden death of her father.  But Maurer is still fighting for a chance to hold Lighthouse accountable in court. Attorneys for the facility claim that she forfeited the constitutional right to sue when she signed a densely worded contract that forced the family into private arbitration if a dispute arose, even one involving a wrongful death claim.

I never believed they would arbitrate my father’s life like he’s a piece of paper, and not a living, breathing human being,” said Maurer.

Over mounting objections from consumer groups and regulators, arbitration agreements like the one Maurer signed are proliferating in the senior care industry. Hundreds of Minnesota nursing homes and assisted-living centers now request that elderly people sign arbitration clauses on admission. The clauses require them to forfeit their right to a court hearing and, instead, lock elderly residents into a secretive process for resolving claims. Even in cases of extreme neglect and death, nursing homes use the clauses to block residents and their families from pursuing lawsuits.

 In Minnesota and nationally, more attorneys are seeking to throw out arbitration clauses, particularly in cases where there is evidence that elderly residents were coerced into signing the contracts. In a recent case, the Kentucky Supreme Court refused to enforce arbitration agreements in three wrongful-death cases, ruling that legal representatives of nursing-home residents lack the authority to waive another’s “God-given right” to a jury trial.
UNITED HEALTH SERVICES OF GEORGIA, INC. ET AL. V. NORTON ET AL. (S16G1143)

PruittHealth, Inc. is frivolously appealing a Georgia Court of Appeals decision allowing a man’s wrongful death lawsuit on behalf of his deceased wife to proceed in court against one of its nursing homes, even though his wife had allegedly signed an arbitration agreement when she entered the home.

FACTS: From April 2013 until her death in April 2014, Lola Norton lived at PruittHealth-Toccoa nursing home, which is owned and managed by United Health Services of Georgia, Inc. While in the facility, Lola allegedly suffered injuries and harm, including falls, fractures, weight loss, and ultimately death. Following her death, her husband, Bernard Norton through his son and power of attorney, Kim Norton, filed a lawsuit claiming several causes of action including wrongful death, and alleging that all of Lola’s injuries and death were the result of the nursing home’s inadequate care and inadequate staff.

The lawsuit was against PruittHealth, United Health Services and seven other defendants who are affiliates or employees of PruittHealth. In response, the defendants filed a motion asking the court to dismiss the case, or in the alternative, to stay the proceedings and compel arbitration. The trial court granted their motion and compelled the entire case and all its claims to arbitration. Norton and his family appealed, and the Court of Appeals partially reversed the trial court’s ruling.

While the Court of Appeals found that the estate claims were barred by the arbitration agreement, it reversed the trial court’s order compelling arbitration of the wrongful death claim. The appellate court found there was no evidence that Lola’s wrongful death beneficiaries had entered into an agreement of their own to arbitrate their separate, distinct claims. United Health Services, PruittHealth and the others now appeal to the Georgia Supreme Court, which has agreed to review the case to determine whether an arbitration agreement signed by a person during her lifetime, which binds her and her estate to arbitration in the event of a dispute, is enforceable against her beneficiaries in a wrongful death action.

Attorneys for the Nortons argue the Court of Appeals correctly determined that wrongful death beneficiaries who are not parties to an arbitration agreement are not required to arbitrate their claims. “The Federal Arbitration act does not mandate enforcement of the arbitration agreement in this matter,” they argue in briefs. “Here, Lola Norton’s wrongful death beneficiaries were not parties to the arbitration agreement” she had signed during her lifetime, and Lola “did not have the authority to send her wrongful death beneficiaries’ claims to arbitration.”

Georgia law also does not require enforcement of the arbitration agreement against the wrongful death beneficiaries in this matter, the lawyers contend. United Health Services and the others incorrectly argue the Court of Appeals erred by treating arbitrations differently than other contracts. Under Georgia Code § 13-3-1, a valid contract contains three elements: subject matter of the contract, consideration, and mutual assent by all parties to all contract terms. “Lola Norton’s wrongful death beneficiaries were not parties to the arbitration contract at issue and, like any other contract related to the forum or any other procedural defense, there is simply no contract regarding their claims,” the attorneys contend.

“Wrongful death claims are required to be brought by a different party than survival/estate claims, have separate damages, and a separate statute of limitations.” “Since wrongful death beneficiaries have their own separate and distinct claim, it is also logical that they should have a say in where and how their claim will be litigated,” the family’s attorneys argue. “Wrongful death beneficiaries cannot lose their right to choose their forum or whether to arbitrate their claims if they did not…sign a contract or agreement to arbitrate.” Finally, courts in other states have reached a similar conclusion as the Georgia Court of Appeals regarding wrongful death beneficiaries’ claims, the attorneys contend.

 

Consumer Voice, in partnership with Justice in Aging, has released a new fact sheet entitled “Why-the-Recently-Revised-Nursing-Home-Regulations-Are-Vital-for-Nursing-Home-Residents

After four years of work from the Centers for Medicare & Medicaid Services (CMS), newly revised federal nursing facility regulations were released in September, and most provisions went into effect on November 28.  These revised regulations provide critical consumer protections.  This fact sheet provides an overview of some important new revisions and how they protect long-term care consumers.  Stakeholders and policymakers can use the fact sheet to better understand the role the revised regulations have in improving nursing care, including an increased focus on addressing a resident’s needs and preferences.

Protections Include:

Greater focus on addressing a resident’s individual needs and preferences. A nursing home must learn more about who the resident is as a person, provide greater support for resident preferences, and give residents increased control and choice.

Prompt development of a care plan. The original regulations allowed a resident to be without a care plan for as long as 21 days following admission. Now, a facility must develop and implement a care plan within 48 hours of a resident’s admission.

More comprehensive care. Treatment and services have been expanded to include pain management, dialysis, and behavioral health services.

Improved training. Training requirements have been expanded to apply to all staff, contractual employees, and volunteers. Mandatory topics include communication, residents’ rights, and prevention of abuse, neglect and exploitation. Training for nursing assistants is expanded to include dementia management and resident abuse prevention.

Improved protections against abuse, neglect and exploitation. A nursing home must not employ a licensed individual with a disciplinary action, and must report suspicions of a crime to law enforcement and the state survey and certification agency.

Better protection of resident property. Nursing homes are now required to take reasonable care of resident belongings and can no longer seek waivers of their responsibility for lost or stolen property.

Increased visitation rights. A resident can accept visitors at any time of the day.

Protection against evictions. Eviction for non-payment is not allowed when a third-party payor (such as Medicaid) is evaluating a claim for payment. For evictions based on a nursing home’s supposed inability to meet a resident’s needs, the nursing home must document its attempts to meet the resident’s needs, and the ability of a receiving nursing home to meet those needs.

Limiting nursing home’s ability to “dump” a resident at the hospital. In an effort to evade eviction safeguards, some nursing homes “dump” residents by refusing to readmit them from hospitalizations. Now, a nursing home must follow eviction procedures and give a hospitalized resident an opportunity to appeal, when the nursing home claims that the resident cannot return.

Prohibiting forced arbitration of claims of misconduct. Currently, many nursing home admission agreements compel a resident to bring any future claims about abuse, neglect or other quality of care issues through private arbitration. The revised regulations prohibit nursing homes from forcing residents to arbitrate disputes, but allow voluntary arbitration agreed to after a dispute arises.

On October 21, 2016, the Supreme Court of Iowa decided in the Roth Opinion that loss-of-consortium claims cannot be compelled to arbitration despite the nursing home resident’s son (who held a general healthcare power of attorney) signing an arbitration agreement with the nursing home at the time of admission that specified that claims against the nursing home would be resolved by arbitration.

After the lawsuit for neglect and wrongful death was initiated, the nursing home removed the case to federal court based on diversity of citizenship and then moved to compel arbitration.

The Iowa Supreme Court was asked to answer two certified questions of Iowa law relating to the adult children’s loss-of-consortium claims. The first certified question was, “Does Iowa Code section 613.15 require that adult children’s loss-of-parental-consortium claims be arbitrated when the deceased parent’s estate’s claims are otherwise subject to arbitration?”

The Iowa Supreme Court stated there is a critical difference between the wrongful death cause of action and the consortium cause of action. In the latter, damages are to be distributed by the trial court to the children under section 633.336.

The Iowa Supreme Court had to decide whether the loss-of-parental-consortium claim, which belongs to the children but is ordinarily brought by the estate, is subject to arbitration based upon the decedent’s agreement to arbitrate.

The Iowa Supreme Court held, “we do not find the Roth children’s consortium claims subject to arbitration under the facts certified to us. These claims belong to the adult children, and they never personally agreed to arbitrate … While loss-of-consortium claims under Iowa Code section 613.15 could be subject to arbitration, a decedent’s arbitration agreement alone is an insufficient basis for this outcome.”

The Iowa Supreme Court also noted that in jurisdictions where the wrongful death claim belongs to the survivors but is brought by the personal representative, courts regularly hold that the decedent’s arbitration agreement does not lead to arbitration of the wrongful-death case.

 

 

 

The American Health Care Association is the paid lobbying group for the profitable nursing home industry that represents most nursing homes in the U.S.  The lobbying group has filed a lawsuit against the federal government over a new rule that protects the right of patients and their families to sue nursing homes in court.

The new rule prohibits the unfair use of mandatory pre-dispute binding arbitration clauses in nursing home admission contracts, which require patients and their families to settle any dispute over care outside the court system via arbitration.  The rule does not prohibit arbitration after a dispute arises.  Residents and their family members still maintain the right to agree to arbitration.

The frivolous lawsuit filed in Mississippi by the American Health Care Association calls the arbitration clause ban “arbitrary and capricious” and contests the authority of the Centers for Medicare & Medicaid Services to regulate how nursing homes handle disputes. Of course, CMS can regulate nursing homes–that is their whole purpose.  The prohibition is not arbitrary or capricious.

The lawsuit repeats false claims by the American Health Care Association that arbitration is “an equally fair — yet far simpler and less costly — means of seeking redress as compared to the complicated and slow-moving court system.”  However, consumer advocates, legal experts, and residents all know that arbitration awards are lower than jury verdicts; that the cost of arbitration is excessive compared to using the judicial system; that there is no appeal to an arbitration award; that arbitration limits discovery making it difficult for residents to prove their case; and that arbitration is confidential so the public is not aware of the abuse, neglect, and fraud occuring in nursing homes in their community.

In fact, a 2009 study commissioned by the American Health Care Association found the average awards after arbitration in nursing home cases were 35 percent lower than if the plaintiff had gone to court.

 

The following is a statement from American Association for Justice President Julie Braman Kane in response to the American Health Care Association filing a lawsuit today challenging the Centers for Medicare & Medicaid’s new regulation prohibiting nursing homes’ use of pre-dispute arbitration clauses:

Cases of nursing home residents being abused and mistreated are far too common and corporate nursing homes have prioritized profits over people for years. The nursing home industry has hidden behind forced arbitration clauses to cover up abuse and neglect, and now they’re upset that regulators are stepping in.

“Rather than work to better protect residents and their families, these corporate nursing homes filed a lawsuit in a last-ditch effort to hang on to forced arbitration. Ironically, the nursing home industry is using a lawsuit to try to deprive residents and their families of that same right. The industry is grasping at straws because CMS clearly and accurately stated its legal authority to regulate the use of forced arbitration by nursing homes.

Background:

Corporations bury forced arbitration clauses in the fine print of everything from nursing home admissions forms to employee handbooks and credit card terms of service. These abusive clauses force Americans’ claims into arbitration – a rigged, secretive system designed by corporations to deny justice and accountability. Fortunately CMS has finally put an end to nursing homes’ use of the corporate bullying tactic of forced arbitration clauses, thus restoring the rights of residents and their families to hold these corporations accountable.

The American Association for Justice works to preserve the constitutional right to trial by jury and to make sure people have a fair chance to receive justice through the legal system when they are injured by the negligence or misconduct of others—even when it means taking on the most powerful corporations. Visit http://www.justice.org.

The Consumerist wrote an interesting article on the legal authority that allows CMS to prohibit mandatory arbitration clauses in nursing home admission agreements.

“We are requiring that facilities must not enter into an agreement for binding arbitration with a resident or their representative until after a dispute arises between the parties,” reads the rule. “Thus, we are prohibiting the use of pre-dispute binding arbitration agreements.”

When CMS proposed these limits in July 2015, industry insiders claimed that the agency lacks the authority to restrict the use of arbitration. However, CMS concluded that the Federal Arbitration Act (FAA), which allows for these sorts of clauses in contracts, does not limit regulators’ ability to put limits on the use of arbitration agreements.

[T]he plain language of the FAA applies only to existing arbitration agreements voluntarily made between private parties,” explains the CMS in the finalized rule, “it does not compel or require the use of arbitration between private parties. Because it does not prescribe circumstances in which arbitration agreements must be used, it does not impinge on federal agencies’ rights to issue regulations regulating the conditions of adoption of such agreements, assuming that the Secretary otherwise has proper statutory authority.”

However, because the CMS concedes that the FAA still applies to agreed-upon contracts, the new rule — which goes into effect Nov. 28, 2016 — will have “no legal effect on the enforceability of existing pre-dispute arbitration agreements.”

So if a nursing home resident has already signed a contract containing a mandatory arbitration clause, CMS confirms to Consumerist that the patient will continue to be bound by the terms of that agreement.

[T]he rule we are issuing does not affect already-existing arbitration clauses, but prohibits Medicare-and Medicaid-participating LTC facilities from using them in the future, as a condition of participating in these programs,” reads the rule (on p. 399). “While we share the same public policy concerns about already-existing arbitration agreements, we are only addressing agreements reached after the effective date of this rule.”

It is simply unacceptable to provide taxpayer dollars to organizations that deny consumers their day in court,” said Senator Patrick Leahy in a statement to Consumerist. “Today’s rule is a small but important victory in the long battle to root out these secretive, complicated arbitration clauses that favor corporate interests over consumer rights.”