Illinois Lawmaker Introduces Fairness in Nursing Home Arbitration Act
On December 5, 2019, U.S. Representatives Linda T. Sánchez (D-CA) and Jan Schakowsky (D-IL) introduced the Fairness in Nursing Home Arbitration Act. This legislation would prohibit long-term care facilities from requiring or soliciting residents to enter into pre-dispute, mandatory, binding arbitration agreements. The Obama administration banned forced arbitration by nursing homes in 2016, but the Medicare and Medicaid Division stripped the rights from residents on July 16, 2019, by overturning the ban.
Long-term care residents should never be forced, pressured, threatened, or have it suggested they waive their right to court proceedings before a dispute even arises. And at Levin & Perconti, we applaud these lawmakers, especially Illinois Congresswoman Schakowsky, in seeking ways to reintroduce forced arbitration protections that support the legal rights and well-being of elderly Americans. These are our most vulnerable citizens who are being impacted by the nation’s abuse and neglect epidemic running ramped in U.S. nursing homes each day. Residents deserve their day in court should they become injured, ill, or fatally harmed due to someone else’s negligence.
“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,” said in a statement released by Rep. Jan Schakowsky. “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.”
Several nursing home resident advocate organizations have also endorsed the legislation.
- 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)
“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,” said AARP Senior Vice President of Government Affairs Bill Sweeney. “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.”
In July 2019, CMS presented a final rule allowing nursing homes to use binding arbitration agreements. In September 2019, lawmakers in the House voted 225-186 to pass the Forced Arbitration Injustice Repeal (FAIR) Act. It was introduced by Rep. Hank Johnson (D-GA) and Sen. Richard Blumenthal (D-CT), again with the help of many similar supporters seeking to hold long-term care wrongdoers responsible for abuse and neglect. But the FAIR Act is expected to see little movement in the Republican-controlled Senate. As well, the White House issued a Statement of Administration Policy that suggested the President will veto the FAIR Act if it arrives at his desk.
Nursing Home Residents Should Not Feel Swayed into Agreeing to Any Form of Arbitration
Victims of nursing home abuse and neglect fare better when allowed to plead their case in front of a jury. But arbitration agreements make it easier for abusive and neglectful facilities to cover up pressure sores, lethal overdoses, preventable disease outbreaks, malnutrition, preventable falls, sexual assault, or even the death of a resident. Although facilities must inform patients that they aren’t required to sign and homes must explain the contract to the resident “in a form and manner that he or she understands,” many residents feel fooled into or compelled to sign one.
If your family is seeking long-term care and confronted with a contract, we strongly suggest that if it contains any arbitration agreement language, you talk to a nursing home abuse and neglect attorney before signing it. If abuse should take place against your loved one, you will want to position the accountability of those actions on the responsible party and help prevent the mistreatment from happening again by letting others know via a public trial.
“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,” in a released statement provided by the office of Robyn Grant, National Consumer Voice for Quality Long-Term Care Director of Advocacy & Outreach. “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.”
A full review of the Fairness in Nursing Home Arbitration Act text is available here.
Nationally Recognized Leaders in Nursing Home Abuse and Neglect Law
We have experience in interpreting nursing home agreements and know when our clients have been misguided or mistreated. Our attorneys take great pride serving as advocates for nursing home residents and their families. Consultations with Levin & Perconti staff are always free, confidential, and handled by one of our skilled and experienced attorneys. Call us toll-free at 1-877-374-1417 or 312-332-2872.