On August 22, the Los Angeles Times Consumer Confidential section ran an article that covered the fight by Democratic lawmakers and advocates to push back against the Centers for Medicare and Medicaid Services’ recent about-face decision to allow arbitration agreements as a condition for admission to nursing homes. The recent push by CMS for arbitration shocked everyone who watched them fight for a BAN against such agreements just last year. After a Mississippi federal court upheld the American Health Care Association’s injunction against enforcement of the ban in December, the issue has been fought over but without an official decision coming to pass. Then, without much explanation, CMS abandoned the fight for a ban on arbitration agreements and announced that they would instead be supporting their use by nursing homes. The surprise reversal of course by CMS has disappointed the public, but also Republican and Democratic Senators and Attorneys General in many states.
LA Times Takes a Stance
In the article, journalist David Lazarus discredits the American Health Care Association’s argument that arbitration gives customers an equitable, quicker resolution to a legal battle and allows them to avoid court costs and attorney’s fees. Lazarus responds that “study after study shows that consumers typically get the short end of the stick in arbitration.” In nursing home disputes, the arbitrator is chosen by the nursing home, making it highly unlikely that the arbitrator won’t show some sort of bias towards the company paying them to perform a service.
Lazarus also argues that allowing nursing homes to get away with arbitration keeps horrible acts of abuse and neglect off the public record, preventing future families from making a truly informed choice when picking a nursing home to care for their loved one.
According to the author, a 2014 report by the Department of Health and Human Services revealed that 33% of nursing home residents had faced harm or experienced an ‘adverse event.’ He also cites data from the Center for Responsive Politics that nursing home industry lobbyist groups have spent $8 million fighting for arbitration in nursing homes in the last 2 years alone. It’s an issue that’s causing them obvious panic, fearing that the now lucrative business of owning a nursing home might go under by giving residents back the right to sue when they’ve been abused or neglected.
The article notes that the Trump Administration has publicly endorsed mandatory arbitration for nursing homes because it would be beneficial to those providing care to seniors. Author David Lazarus concludes by saying “I suspect most nursing home residents and their kin would say this in response: These companies would have nothing to worry about if they did an adequate job of keeping people safe. That’s not too much to ask.”