The federal agency in charge of overseeing more than $1 trillion in Medicare and Medicaid funds has taken a stand against the commonplace practice of forcing victims of nursing home abuse into resolving disputes via arbitration, rather than in court.
Increasingly, provisions buried in the fine print of nursing home admission contracts have required residents to resolve quality of care disputes within this private system – out of public view. Not only are these proceedings confidential, but also they consistently favor the nursing home. Even when damages are awarded to plaintiffs, they are usually much less than what one would typically receive in a judgement issued by the courts. Arbitrators are chosen by the nursing homes, and there is an incentive for them to resolve cases in a way that minimizes the financial impact to the facility.
This, of course, is inherently unfair, and advocates for years now have been calling for the federal government to step in and curtail such forced arbitration. Now, the Centers for Medicare and Medicaid Services, a division of the U.S. Health and Human Services Department, has taken a major step in restoring a key right of millions of vulnerable, elderly Americans. The agency’s new rule, hailed as the most significant in decades, holds that any nursing home that gets federal funding can’t deny residents and families the right to have their day in court.
This is an important rule for all nursing home residents, but it may be increasingly relevant for those in Maine, which is likely to see an uptick in nursing home residents for two reasons: an aging population and a major shortage of home health care workers.
As The Free Press reported, Maine is the oldest state by median age in the country. This means we are facing a massive labor shortage as baby boomers retire, something that’s going to hit the home health care industry especially hard. The home health care sector, in which low wages and physically demanding work conditions are a barrier to entry, has the largest percentage of over-55 workers, according to the Maine Council on Aging. Said the agency’s co-chair, “It’s not a shortage – it’s a crisis.”
An influx of new patients will be taxing on existing nursing homes as well. But many of these for-profit organizations have huge profit margins, and they could spend to recruit more workers if necessary. Unfortunately, many facilities fail to put patients before profits, scaling back staff to skeletal levels even as the demands of an increasing number of patients require more help than ever.
Arbitration has long been another way for the nursing home industry to reduce costs. But it’s been the victims and families who have paid the price, since they are prevented from getting the justice they deserve – even in cases of murder. For example, The New York Times detailed several cases last year in which families of elderly nursing home residents who were murdered by their roommates were initially blocked from suing the nursing homes for inadequate supervision (and other shortcomings) due to arbitration agreements.
Some examples of the injustices the Times cited in some arbitration proceedings included:
- Companies paying employees to testify in their favor;
- A six-hour hearing costing a plaintiff $150,000;
- Proceedings conducted in the conference rooms of defense attorneys; and
- Arbitrators who twist and in some cases outright disregard the law.
That’s why the new CMS rule is so important. It came after officials in 16 states plus the District of Columbia urged the federal government to end funding for nursing homes that use the clauses, citing the practice as a means for nursing homes to hide patterns of wrongdoing and nursing home abuse of residents.
If you or a loved one is injured, contact Peter Thompson & Associates at 1-800-804-2004 for a confidential consultation to discuss your rights.
Maine Faces Dramatic Labor Shortage of Home Care Workers, Sept. 29, 2016, By Andy O-Brien, Free Press Online
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Fatal Fall From Portland Hospital Window Was Negligence, Family Says, April 30, 2016, Bangor Nursing Home Abuse Lawyer Blog