Category Archives: Arbitration

Palm Valley Rehabilitation and Care Center was negligent in the care of a resident so the resident sued.  The nursing home moved to dismiss the case and demand the case be heard by an arbitrator.  The Arizona courts disagreed.  The facility won’t be allowed to use arbitration in a wrongful death lawsuit that stemmed from a wheelchair accident involving a resident, an appeals court ruled.

The signed agreement between Palm Valley Rehabilitation and Care Center and the resident’s son required arbitration to solve disagreements over medical services.  The resident’s son sued the facility for wrongful death, negligence and violating the Adult Protective Services Act following a wheelchair accident involving his mother in March 2016, court documents explained. According to the Arizona Court of Appeals, the pushing of a wheelchair doesn’t count as a “medical service” and doesn’t fit within the scope of the agreement — meaning the facility can’t compel arbitration to solve the dispute.

A certified nursing assistant was pushing the wheelchair when his mother’s foot got tangled with a loose cord, causing her to fall head first onto the floor and breaking her neck. She later died from the injuries.

Palm Valley had argued that the case is a medical malpractice lawsuit under Arizona’s Medical Malpractice Act. The court disagreed, saying the facility’s definition of medical malpractice in the arbitration clause was too narrow.

Vox: 9 Supreme Court cases that shaped the 2010s. By Ian Millhiser, 12/26/19.

Concepcion held that forced arbitration agreements may also ban class actions — a mechanism that allows many people who were injured by the same company to join together in a single lawsuit against that company. Concepcion reached this holding, moreover, despite the fact that the Federal Arbitration Act says nothing whatsoever about class actions.

Refinery29: What Happened To Gretchen Carlson After The Fox Settlement Seen In Bombshell? By Lia Beck, 12/20/19.

As she explained in her New York Times story, Carlson also worked with Congress members to introduce the Ending Forced Arbitration of Sexual Harassment Act, which sought to end the practice of cases of sexual harassment at companies being dealt with behind closed doors, rather than employees being allowed to sue and taken to their cases to court, as explained by Vox. As the publication also reports, in September, the House passed the Forced Arbitration Injustice Repeal Act, or FAIR Act, which encompasses the issue Carlson supported, but is more far-reaching.

Law.com: Battle Over Mandatory Arbitration in New Jersey Intensified in 2019. By Charles Toutant, 12/27/19.

New Jersey was at the forefront of a legal and public policy battle over mandatory arbitration of employment and consumer contracts in 2019. And 2020 promises more conflict as pro-arbitration interests and those opposing mandatory arbitration battle in state and federal courts.

The AARP and 13 other organizations support legislation that would prohibit nursing homes from requiring residents to waive their constitutional right to a  jury trial by allowing mandatory arbitration agreements with residents prior to any abuse, neglect, or acts of malfeasance.

The organizations are leaders and experts in long term care, elder law, and consumer advocates including The Long-Term Care Community Coalition, Justice in Aging and National Consumer Voice for Quality Long-Term Care.

The use of pre-dispute arbitration agreements is fundamentally unfair, and facilities and home and community-based services (HCBS) providers that receive federal Medicaid and/or Medicare funding should not be permitted to impose them on consumers,” the groups said in a letter to legislators.

When a person is seeking care for themselves or a loved one, they should be able to focus on the quality and range of services available. No one should be expected to anticipate or contemplate the occurrence of grievous harm or poor care when these agreements are signed upon admission or when one is about to begin receiving services,” the groups added.

Manor Pines Convalescent Center nursing home must pay $356,700 to the family of a 92-year-old man who fell and injured his head but was not taken to the hospital, an arbitration panel has ordered.  Calvin Gorsuch had Alzheimer’s disease and a history of falls and had been admitted for rehabilitation. After he was transferred into the skilled care nursing section of the facility, he fell and hit his head. This was Gorsuch’s fifth fall at the facility.

Workers performed an X-ray and deemed him clear to return to his room, rather than sending him to the hospital for treatment. Gorsuch developed a hematoma on his brain and died eight days later.

Gorsuch, a World War II veteran, was married for 65 years and is survived by his wife and two children.

An arbitration panel found Manor Pines Convalescent Center negligent and in violation of residents’ rights. On Nov. 21, the panel awarded the family $6,700 for funeral costs and $350,000 for pain and suffering. Because Gorsuch had fallen before, Manor Pines also should have provided more supervision.

U.S. Representatives Linda T. Sánchez (D-CA) and Jan Schakowsky (D-IL) today introduced the Fairness in Nursing Home Arbitration Act to protect the legal rights of elderly Americans. This legislation would prohibit long-term care facilities from requiring or soliciting residents to enter into pre-dispute, mandatory, binding arbitration agreements.

 Rep. Linda Sánchez – “This legislation is about putting patients and families first. The decision to transfer a parent or loved one to a long-term care facility is heart-wrenching. I still remember the day we moved my late father into a nursing home. My family and I were focused on the quality of care and range of services the facility would provide him. We were not focused on the language in the agreement that would limit his rights should something go wrong. Under this bill, families will no longer have to worry about losing their right to a day in court. I urge my colleagues to join me in protecting one of our most vulnerable groups in society, the elderly.”

Rep. Jan Schakowsky – “Every day, families bring their loved ones to nursing homes all around the country, certain that they will receive the high-quality care and comfort they need. Unfortunately, many of them unknowingly sign away their right to seek justice and are forced into an often unfair arbitration process should a nursing home resident be harmed. Whether it’s willful neglect or a simple accident, residents and their families should have the right to seek justice in front of a judge and jury, and not be locked into a conference room for forced arbitration.”

This legislation is endorsed by:

  • AARP
  • California Advocates for Nursing Home Reform
  • Caring Across Generations
  • Center for Medicare Advocacy
  • Justice in Aging
  • Long Term Care Community Coalition (LTCCC)
  • National Academy of Elder Law Attorneys
  • National Association of Local Long Term Care Ombudsman (NALLTCO)
  • National Association of Social Workers (NASW)
  • National Association of State Long-Term Care Ombudsman Programs (NASOP)
  • National Consumer Voice for Quality Long-Term Care
  • Public Citizen
  • Service Employees International Union (SEIU)

 Rep. Sánchez first introduced the Fairness in Nursing Home Arbitration Act in the 110th Congress after hearing numerous testimony during her time as Chairwoman of the House Judiciary Committee’s Subcommittee on Commercial and Administrative Law.

AARP Senior Vice President of Government Affairs Bill Sweeney – “When individuals and their families make the difficult decision to enter a nursing home, often in emergency situations, they should not be forced to sign away their legal rights through mandatory arbitration agreements. AARP supports the Fairness in Nursing Home Arbitration Act because it would prohibit these fundamentally unfair contract provisions. In the heartbreaking cases where loved ones in nursing homes are abused or injured, they should not lose access to the judicial system. We thank Representatives Sánchez and Schakowsky for their important work on this issue.”

American Association for Justice CEO Linda Lipsen – “Forced arbitration strips our nation’s most vulnerable citizens of their legal rights when a nursing home corporation’s negligence causes the injury or death of a patient. We applaud Rep. Sánchez for introducing the Fairness in Nursing Home Arbitration Act and ask Congress to act quickly to restore long-term care patients with their constitutional right to be heard by a judge and jury.”

Long Term Care Community Coalition Executive Director Richard J. Mollot – “LTCCC believes pre-dispute arbitration agreements are inherently unfair to residents and families. When a resident enters a facility, they are not likely to be in a position to truly consider what future problems may occur. Most people are overwhelmed by the situation and trust that the nursing home is providing them with paperwork to sign that is both necessary and in the resident’s best interest. Nobody knowingly enters a nursing home expecting that they will be abused or neglected.”

Public Citizen Counsel for Civil Justice and Consumer Rights Remington Gregg – “We thank Rep. Sánchez for being a champion for seniors. If seniors are injured, abused, or otherwise harmed, they and their families should have peace of mind that they will be able to hold corporate wrongdoers accountable in court and receive the justice they deserve.”

Center for Medicare Advocacy Policy Attorney Dara Valanejad – “Too often, nursing home residents and families enter into pre-dispute arbitration agreements in the midst of physical and emotional crises. The Fairness in Nursing Home Arbitration Act of 2019 will ensure that long-term care residents and those in community-based settings are not forced, coerced, or “requested” to waive their right to court proceedings before a dispute even arises. Our nation’s most vulnerable individuals deserve to be protected from these pre-dispute arbitration agreements.”

National Consumer Voice for Quality Long-Term Care Director of Advocacy & Outreach Robyn Grant – “The National Consumer Voice for Quality Long-Term Care thanks Congresswomen Sánchez and Schakowsky for their leadership in protecting nursing home residents and individuals receiving Medicaid-funded home and community -based services from forced pre-dispute arbitration agreements. Such agreements are fundamentally unfair to consumers of long-term services and supports in any setting. They pressure people to decide how to settle a dispute – which could involve gross negligence, abuse, or even death – before a dispute arises and without any information about the dispute. Once signed, the individual loses forever their constitutional right to pursue action in a court of law. These agreements take advantage of consumers at their most vulnerable and stack the deck against them by frequently allow the long-term care provider to select the arbitrator, the rules for the arbitration process, and where the arbitration will be held. But pre-dispute arbitration agreements harm more than the individual who is seeking justice and accountability. Because the agreements usually are confidential, the public, including those looking for a nursing home, will never know the nursing home’s full track record – no matter how bad – because it is hidden. We applaud both Congresswomen for their commitment to ending this shameful practice and upholding the rights of vulnerable individuals in need of care.”

 

The Des Moines Register published an editorial (see below) from Iowa Republican Senator Chuck Grassley regarding the importance of government oversight for the health, safety, and well-being of the residents of nursing homes.  As a nursing home abuse and neglect attorney trying to prevent and deter the rampant abuse and neglect at many nursing homes, it is refreshing to hear a politician understand the significance of proper supervision.

“Oversight is often a vehicle for change in the federal government. In order to solve a problem, you need to know what it is, how bad it is and why it’s happening. Oversight is an important tool to find answers to those questions as well as ensure the appropriate steps are taken to solve the problems.

A significant amount of the work I do in the Senate centers on oversight. From health care to the Pentagon, I care deeply about rooting out waste, fraud and abuse in the federal government in order to make it function better for the people of Iowa and the entire country. My oversight team works regularly with whistleblowers to identify problems in the federal government, but often it’s Iowans who contact me with issues they’re facing that begin my most important oversight work. One example of this is elder abuse.

Through letters, phone calls and at my annual 99 county meetings, Iowans with loved ones in nursing homes have approached me about concerns they’ve had regarding the treatment of their family members. Their concerns have ranged from lackluster facility conditions to claims of negligence and abuse. Their concerns have inspired my decades-long work to preserve the dignity of older Americans.

As the former chairman of the Senate Aging and Judiciary committees, as well as earlier in my tenure as Senate Finance Committee chairman, I conducted oversight of the nursing home inspection process and convened hearings focused on enhancing quality standards and compliance across the nursing home industry. I’ve continued that work this Congress as I’ve stepped back into the Senate Finance Committee chairmanship. Part of those oversight efforts have included numerous letters to the Centers for Medicare and Medicaid Services (CMS) requesting information on how the agency is working with facilities to keep these standards high and take action when they fall short.

For example, former Sen. Herb Kohl (D-Wis.) and I released a number of important Government Accountability Office (GAO) reports that exposed serious quality care problems in nursing homes. A 1998 report exposed serious quality of care problems in nursing homes, exacerbated in part by highly predictable annual inspections and few citations for serious deficiencies. Senator Kohl and I held hearings in the Aging Committee about the report and urged action from the Clinton administration, which it later took to improve the inspection process.

In 2009, we released another GAO report on the Special Focus Facility (SFF) Program, which monitors nursing homes that earn the worst quality ratings. The study recommended that SFF be administered by CMS and expanded to accommodate more of the 580 nursing homes GAO found to be the poorest performers. Both in 2010 and 2012, Senator Kohl and I released reports that highlighted under-reporting of serious deficiencies in nursing home care and urged CMS to improve oversight of its system to monitor quality standards.

These ongoing oversight efforts have led to significant positive changes. In 2008, CMS increased the information available on Nursing Home Compare, a government-run website that allows families to compare nursing home facilities as they try to find the right home for their aging loved ones. CMS has also implemented a standard survey methodology across all states for quality care standards, making it easier to identify nursing homes that fall short and quickly work to resolve the problems.

Last year, CMS began publishing rates of hospitalization for long-stay residents on Nursing Home Compare, which factors into facility ratings, and created a new system to monitor nursing home staff levels, which also factors into facility quality ratings because low staff levels often lead to poor care.

After oversight efforts exposed nursing home employees who were taking humiliating and demeaning photos of elderly residents without their knowledge or consent, social media companies moved forward to develop better means of reporting abusive cases and CMS issued additional guidance on social media abuse.

In March of this year, the Finance Committee held a hearing on abuse and neglect occurring in America’s nursing homes. During the hearing, an Iowan testified about her mother’s death due to alleged neglect by staff members at a federally funded nursing home that held a five-star rating on Nursing Home Compare. That same facility had also been the subject of multiple complaint investigations in recent years.

Following the hearing, CMS announced a five-part approach to guide its work to ensure safety and quality in America’s nursing homes. The approach will focus on strengthening oversight, enhancing compliance enforcement, increasing transparency, improving quality and putting patients first – priorities I have advocated for over the past two decades.

Older Americans deserve to maintain their dignity and live in safe, caring environments during their golden years. Oversight of nursing homes and the federal agencies that police them is essential to ensuring that happens.

Provider Magazine had the below message on their website:

The long term and post-acute care profession is reminding providers that new arbitration regulations released earlier in the summer by the Centers for Medicare & Medicaid Services (CMS) have gone into effect as of Sept. 16, stressing that separate legal actions concerning arbitration issues do not impact the implementation process.

Sources at the American Health Care Association (AHCA) tell Provider that despite some erroneous media coverage of the arbitration implementation date, the Sept. 16 start date has not been impacted. Only specific providers involved in arbitration rule lawsuits are affected by the court order, not all skilled nursing facilities (SNFs), they say.

The final rule (CMS 3342-F) will allow CMS to regulate SNF arbitration agreements effective Sept. 16, but this does not apply to agreements signed before that date.

Further, providers need to make sure that their agreements and practices are in compliance with the new regulations, says an AHCA source.

Besides the effective date, the new regulation includes the following:

–          Arbitration agreements cannot be conditions of admission or continuation of care;

–          Agreements must be presented in form, language, and manner that the resident can understand;

–          Agreements must provide for neutral arbitrator and venue;

–          Residents must have the right to cancel agreements within 30 days of signing;

–          Agreements must not discourage a resident from communicating with federal or local officials; and

–          If the dispute is settled by arbitration, a copy of a signed agreement and arbitration award must be kept for five years and available for inspection by CMS.

When CMS released the final arbitration rule on July 16, AHCA applauded the agency for allowing skilled nursing centers to use pre-dispute arbitration agreements, which were banned by the Obama administration in 2016.

Still, on the new final rule’s release, AHCA President and Chief Executive Officer Mark Parkinson said the skilled nursing profession is “concerned about CMS adding any conditions or administrative requirements when Congress has spoken on the subject.”

Pre-dispute binding arbitration agreements are arrangements in which two parties agree to settle future disputes through an arbitration process rather than through litigation. The agreements also require that both parties accept the arbitration process’ outcome.

All hands on deck!

The U.S. House of Representatives will vote Friday on H.R. 1423, the FAIR Act—a bill to end forced arbitration in all its forms.

Help achieve passage of this affirmative, comprehensive legislation to help workers, seniors, and consumers!

Contact your member of Congress today. Your voice matters.

Use AAJ’s Take Justice Back Action Item to send your members of Congress an email (or call) urging the passage of H.R. 1423, the Forced Arbitration Injustice Repeal Act.

For additional information about how forced arbitration devastates Americans, visit AAJ’s Faces of Forced Arbitration website.

The American Association for Justice released a groundbreaking report detailing the fundamental truths of forced arbitration using data provided by the arbitration providers themselves. The Truth About Forced Arbitration examines five years of data on consumer and employment forced arbitrations reported by the nation’s two largest arbitration providers and found that Americans are more likely to be struck by lightning than they are to win in forced arbitration.

  • Though there are more than 800 million arbitration clauses estimated to be in effect, this new study found there are only 6,000 consumer arbitration claims filed every year. On average, only 382 consumers a year win an award in forced arbitration.
  • Similarly, 60 million workers are subject to forced arbitration, but only 0.02% of these workers tried to pursue a claim. Over the five years studied, only 282 employees were awarded monetary damages in forced arbitration, which is less than one-ten-thousandth of one percent of covered workers.
  • Over the five years studied, consumers brought 6,012 claims valued at at least $3.7 billion in damages. They won monetary awards in just 131 cases. In contrast, banks brought 137 cases, yet somehow won monetary awards in 314.
  • In the five years studied, there were only 16 nursing home arbitrations reported at AAA. Ten were brought by consumers and six were brought by corporations. No consumers won any of their cases while corporations won four of the six they initiated.

Given how prevalent forced arbitration clauses are, evidence of just how few cases are ever pursued through forced arbitration makes clear that forced arbitration is providing virtual immunity to Corporate America. As this report shows, there is a clear reason for the disparity between the number of forced arbitration clauses in effect and the number of cases that are ever filed by consumers and workers: forced arbitration is a rigged, secretive, corporate-designed system in which the odds are stacked against Americans.

The Huffington Post just published a story explaining how the report “shows that not only do companies typically emerge victorious from arbitration, but, perhaps more damning, they rarely even have to use the process.”

The Trump Administration published a Final Rule establishing requirements for arbitration agreements between nursing home facilities and the residents.  The Final Rule provides that a LTC facility must not require any resident or representative to sign a binding arbitration agreement as a condition of admission to the LTC facility, or as a requirement to continue to receive care. In addition, the LTC facility must explicitly inform the resident or representative of the right not to sign the agreement as a condition of admission or for continued care. The LTC facility also must ensure that the agreement is explained to the resident or representative in a form and manner that he or she understands, including the language used, and that the resident or representative acknowledges he or she understands the agreement.

The nursing home must ensure that each agreement:

  • provides for the selection of a neutral arbitrator agreed upon by both parties;
  • provides for selection of a venue convenient to both parties;
  • explicitly grants the resident or representative the right to rescind the agreement within 30 calendar days of signing;
  • explicitly states that neither the resident nor his or her representative is required to sign a binding arbitration agreement as a condition of admission to the LTC facility or to continue to receive care; and
  • does not contain any language that prohibits or discourages the resident or anyone else from communicating with federal, state, or local government officials, including but not limited to health department employees, surveyors and representatives of the Office of the State LTC Ombudsman.