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.

 

The Centers for Medicare and Medicaid Services (CMS) removed the 2016 ban on the use of binding arbitration agreements by LTC facilities on July 16. Prior to 2016, the LTC industry widely utilized binding arbitration as the preferred means of resolving resident disputes, offering an informal and cost-effective process for resolving disputes without litigation. In 2016, the federal government banned binding arbitration for LTC facilities that participated in Medicare and Medicaid, despite strong objections from the LTC community. The industry later challenged the CMS ban in federal court and won. CMS then instructed state survey agencies not to enforce the ban pending further evaluation.

In the CMS Final Rule, binding arbitration is back (with some limitations). Some of the restrictions include:

  • The facility cannot condition the resident’s admission on the signing of an arbitration agreement. Indeed, the facility must inform the resident (or legal representative) that he/she does not have to sign. This must be stated clearly in the agreement itself.
  • The agreement must allow the resident to rescind within 30 days of signing. Because the resident can rescind up to 30 days, or not sign at all, it is advisable to document the arbitration agreement separately from other resident agreements.
  • The agreement cannot contain language that prohibits or discourages the resident from communicating grievances to state or federal officials. Some consumer advocates objected that binding arbitration is an inappropriate forum for serious resident injuries or abuse. CMS responded, stating that binding arbitration does not prevent residents from reporting serious injuries or abuse to public authorities, nor does it relieve facilities of their obligation to self-report.
  • The agreement, and any arbitration decision, must be retained by the facility for five years, and available for inspection. This same requirement, however, does not apply to settlement agreements. This may encourage more use of settlement agreements to resolve resident disputes, although any documentation relating to quality of care is likely open to inspection.

In its final rule, CMS acknowledged that it has no authority to annul existing arbitration agreements that are legally valid, and that its restrictions are prospective only. At the same time, CMS will allow facilities to enter into arbitration agreements with existing residents, even if initially banned in 2016. However, the arbitration agreement must meet current CMS requirements, and facilities cannot condition the resident’s continued care upon signing the agreement.

Some in the industry expect further legal challenges to the new CMS rule. Therefore, LTC facilities that believe in the benefits of arbitration should act now to implement CMS-compliant arbitration agreements for new and existing residents. Doing so now may protect these agreements from future legal challenges or changes.

Does it seem fair that you must lose your constitutional right to a jury trial just to get nursing home care?

The Trump Administration issued a final rule allowing forced arbitration agreements in nursing home admission paperwork.  It will keep Obama’s prohibition from requiring residents to sign them as a condition for admission and to inform residents or their representatives that they do not have to sign a binding arbitration agreement.

In addition, the CMS mandated that nursing homes explain the agreement to the resident “in a form and manner that he or she understands.”  In addition to removing the use of “plain language” in arbitration agreements from the final rule, nursing homes will no longer have to post notices describing their arbitration policies for patients and families.

Finally, nursing homes must retain copies of signed binding arbitration for five years after the resolution of any dispute and those documents must be available for inspection upon request by the CMS, accrediting organizations or state surveyors.

The history of binding arbitration agreements has been checkered. In October 2016, the Obama administration banned their use in long-term care facilities, but a legal challenge and subsequent injunction forestalled that effort. Then, in June 2017, under a new administration, CMS proposed a rule that would remove the ban and sought public comment. Long-term care providers are strongly in favor of arbitration agreements because they pay less for neglect and abuse and the results are confidential.

 

A South Carolina nursing facility attempted to avoid accountability by forcing the family of a neglected resident to arbitrate the claim.  Luckily, our client fought back and challenged the enforceability of the arbitration clause in the admission paperwork.

While Hilda Stott did sign the document on behalf of her uncle, Jolly Davis, she did not have the proper authority to make the decision, and was not bound by it, the South Carolina Court of Appeals ruled. We are proud to represent this family and look forward to discovering the truth of his death and get justice for the family.

Davis first entered White Oak of Spartanburg, SC, in January 2013. Niece Stott signed all admission forms on his behalf, despite her uncle possessing intact mental functioning and alertness. He died weeks later and Stott sued, alleging overmedication and dehydration led to his death.

White Oak attempted to enforce arbitration, but the niece’s durable power of attorney for finance did not give her the authority to sign the original agreement because that power was not in place when Davis entered the home. The healthcare power of attorney designation also did not grant the niece the authority to sign an arbitration pact, the court deemed. That’s because the form used was only effective upon Davis becoming mentally incompetent, which he was not at the time of admission.

White Oak Manor Inc and its subsidiaries/agents have asked the Court of Appeals to reconsider their well-reasoned decision.

A new study, however, finds that most Americans have signed away their constitutional right to a jury trial when it comes to America’s biggest corporations.  The study, published in the UC Davis’ Law Review, says 81 of the 100 biggest companies now have policies that prevent customers from getting their day in court for everything from fraud or personal injury to harassment or discrimination.  Some of the companies with so-called “forced arbitration agreements” include Amazon, Apple, Walmart, CVS and Best Buy, as well as many cable companies, cell providers, banks and credit card companies.

Those clauses are usually hidden in the terms of service. When you buy something, or fill out an application, you’re asked to click accept on those terms. Even if you bother to read the fine print, and most people don’t, you may not understand it. You’re agreeing to go to arbitration, which is a private process that does not involve courts, judges or juries. There’s no appeals process, so the arbitrator’s decision is nearly always final.

Studies show that few consumers win in arbitration. When they do, they get much less money than they would in court.

If you’re going to give up a right like this, you need to understand that before you sign or click “accept.”

Always read that fine print and ask questions, if you don’t understand it.

McKnight’s reported on a recent appeal of an arbitration decision in favor of the nursing home resident.  I find it funny that the nursing home industry pushes for arbitration because it is “cheaper” “faster” and “will provide closure” but still appeals the arbitrator’s decision!

Villa Huntington Drive Healthcare Center neglected Patricia Porter’s avoidable pressure injury causing her wrongful death.  Her doctor had ordered a low-air mattress to help prevent and heal a severe pressure ulcer. The order was made on July 4, 2012 but the mattress did not arrive until July 12. Caregivers failed to alleviate the pressure by turning and repositioning Porter adequately, and left her sitting in a wheelchair for six hours, further worsening her injuries. She died in November 2012 from a septic sore and urinary infections.

After listening to all the relevant evidence introduced, the arbitrator awarded the resident and her family $1 million.  California’s  arbitration awards can be reviewed by a court in limited circumstances, but the California Court of Appeal, Second District, deemed that the case did not meet those requirements. That’s because AG Arcadia did not identify any unwaivable statutory rights that the $1 million award violated, Bloomberg reported.

An appeals court ruled that an arbitrator did not exceed her authority by awarding the patient damages in excess of the $250,000 cap contained in the state’s Medical Injury Compensation Reform Act, Bloomberg Law reported.

According to court documents, the facility had argued that the arbitrator exceeded her powers by awarding non-economic damages in lump sums, rather than in proportion to each defendant’s percentage of fault. It also contended that the arbitrator failed to make any findings against parent company AG Arcadia and its facilities.

Huntington Drive Health also asserted that the arbitrator was prejudiced in the matter and did not grant the SNF added time to present testimony from treating nurses and its medical expert, according to court documents.