Much of the news we have read over the last twenty years pertaining to the nursing care industry has given us reason for worry and fear. We’ve watched lawmakers make prodigious cuts to funding and for profit companies pervade the market; all while finding and creating numerous loopholes to recuse themselves of liability. A huge retaliatory blow was struck on behalf of seniors everywhere, however, when the Centers for Medicare and Medicaid Services promised to withhold funding from the corporations that found a way to deny many victims of nursing abuse the right to bring the offending homes to court.

Nursing Industry Forces Arbitration upon Residents of Assisted Care Communities

The right to sue negligent corporations for any injuries their actions may cause is taken for granted, so the families of many nursing neglect and abuse victims were shocked to learn that they had forfeited this right when admitting their relatives into nursing homes that snuck arbitration clauses into their living agreements. These clauses were often placed into the fine print that most people give no more than a moment’s notice to and have prevented many families with legitimate disputes from receiving the justice they sought.

One of the most high profile cases affected by this trend involved the murder of a 100 year old woman who was strangled to death by another resident. When her family sought compensation from the nursing facility responsible for her care, they were surprised when the case was blocked from court due to an arbitration clause. The case later made it to court, but is only one of many that have shocked those concerned about the type of care their own relatives may be subjected to.

Another case involved the family of a woman who was sexually assaulted twice by residents in occurrences only a day apart in Lemon Grove, California. Although the California Department of Public Health ruled that the nursing home’s staff failed to take action to defend the victim, the family’s lawsuit was blocked by the court due to an arbitration clause. After multiple attempts to appeal the decision, the family finally capitulated and agreed to a settlement with the nursing home that didn’t come close to doing the woman justice.

Yet another case blocked from the courts involved the death of a 94-year-old woman from a head wound. When reviewing how these clauses made their way into living agreements, it was discovered that many nursing residents are being forced to choose between giving up their right to sue and receiving the medical care that they desperately need. While the nursing homes claim that arbitration benefits residents by hastening the resolution of complaints, further investigation showed that the benefits are overwhelmingly in the favor of the corporations.

Arbitration Permits the Non-Disclosure of Incidents to Prospective Residents

It was found that one of the stark advantages to forcing arbitration upon residents is that it allows nursing companies guilty of negligent behavior to sweep their misdeeds under the rug and hide them from the public. When most people are vetting homes, they look for information pertaining to past complaints and legal actions. They don’t find much, if anything at all, about incidents that were resolved via arbitration because the details of these claims are kept confidential.

The justification for these clauses are that they reduce legal costs, but it has been repeatedly found that many of the cases of abuse protected by these clauses were never reported about in the media because they were blocked from court. This means that in addition to forcing victims to a mediatory process that is often governed by the defendant’s attorneys, the public is left in the dark.

Action Taken After Numerous Legal and Legislative Attempts at Solution Failed

The last ten years have seen numerous corporations and industries push legislation that protects them from civil action and this includes the nursing care industry. Two Supreme Court decisions made in 2011 and 2013 made it both possible and easy for companies to use these clauses and nearly impossible for consumers to have them overturned. Whether or not a victim understood the clause at the time of signing is irrelevant as well, as indicated by an appeals court judgement that refused to allow the dismissal of an arbitration clause on the grounds that the man who signed it was unable to read.

Arbitration clauses have snuck into other areas of our lives, including employment contracts, loan agreements and service contracts. The widespread use of this strategy and refusal of lawmakers to do something about it even prompted the Consumer Protection Bureau to draft a rule prohibiting financial institutions from using these agreements as a defense against class-action lawsuits.

Numerous bills have been proposed by Democrats to address the injustices that result from forcing arbitration agreements on infirm elderly people, but they’ve always been met with massive resistance. Various industries have invested a great deal of money into lobbying against such measures, forcing many nursing residents and their families to agree to the clauses out of desperation when attempting to meet their care needs.

1.5 Million People Impacted by Centers for Medicare and Medicaid Services Decision

The Centers for Medicare and Medicaid Services is an agency governed by the Health and Human Services Department. It manages over $1 trillion in funding and has the authority to cut funding to homes that have a history of negligent behavior or fail to meet health and safety requirements. Responding to a plea by officials throughout 16 different states and Washington, the agency decided that enough was enough and pledged to blacklist facilities from receiving funding if they require their residents to sign arbitration clauses.

While the decision does nothing to make the practice illegal, it will undoubtedly force nursing homes to remove the clauses by starving them of funding. Such drastic changes to the way nursing facilities will receive payments have not been made for over twenty years, but many people on the left feel that the action is long overdue.

Meanwhile, the nursing care industry has voiced its strong objection to the policy revision. Mark Parkinson, the CEO of the American Health Care Association, claimed that the new policy clearly exceeds the Centers for Medicare and Medicaid Services’s statutory authority and was wholly unnecessary to protect residents’ health and safety.

The question that must be asked then is how blocking cases from court involving the murder of a 100 year old woman, the rape of a woman with Alzheimer’s and the death of a 94 year old from a head wound do any better to protect residents’ health and safety, especially when the community receives no fair warning when they are made to consider placing their own loved ones in the same environment.