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Trump officials propose again letting nursing homes force residents, families into arbitration

By Alissa Widman Neese • Updated Sep 18, 2017 at 5:00 PM

A lawsuit might seem like the obvious way to seek justice if a loved one is hurt, abused or neglected in a nursing home.

But many residents sign away that option on the day they move in — sometimes unknowingly, because the deal is tucked in stacks of admission contract papers.

The pre-dispute agreements waive residents' right to sue, forcing them and their families to settle issues through a professional arbitrator instead of the court system.

The Obama administration moved to ban such agreements late last year, but a change in administrations brought an about-face on the issue. Over the summer, the Trump administration proposed withdrawing the ban before it had even taken effect because of pending court cases.

If the ban is withdrawn, nursing homes could require residents to sign pre-dispute arbitration agreements before they are admitted.

"Rolling back these protections just flies in the face of resident rights," said Beverley Laubert, Ohio's long-term-care ombudsman.

Laubert and other advocates for Ohio nursing-home residents condemned the proposal by the U.S. Centers for Medicare and Medicaid Services.

A final decision must be made within three years, a spokeswoman said.

Critics say the federal government's latest proposal favors nursing homes because residents and their families have unequal bargaining power. They often don't have time to "shop around" for deals because of the limited number of homes with available beds and the tight time frames to make arrangements for care.

Ohio has about 1,000 nursing homes serving about 80,000 people.

Unlike a court process involving a judge or jury, arbitration usually allows the nursing home to select the arbitrator, a power that is laid out in the nursing home's contract terms, and the proceedings are conducted in private and kept secret.

Arbitration agreements also can set limits on the damages a party can recover. Appeals are not allowed.

"Admitting a loved one into a nursing home is a very stressful time, especially if they're coming out of the hospital or if it's an emergency," said Cindy Farson, director of the Central Ohio Area Agency on Aging.

"You'll be hard-pressed to find a nursing home that doesn't have an arbitration agreement if they're allowed to include it as a requirement," she said, "so basically, you're forced into signing it."

The Centers for Medicare and Medicaid Services accepted comments on the matter until Aug. 7. More than 1,000 were submitted, some by people with ties to Ohio, including a letter of opposition signed by Ohio's Sherrod Brown and 30 of his fellow Democratic U.S. senators.

The Cincinnati-based nonprofit group Pro Seniors Inc., the Legal Aid Society of Columbus and Laubert's office also signed letters opposing the proposal. AARP Ohio said its national representatives commented in opposition.

The Ohio Health Care Association, an industry group representing nursing homes, expressed support for the Trump administration's move. Its national counterpart, the American Health Care Association, was part of a federal lawsuit that blocked the Obama administration's ban on arbitration agreements last year. The ban had been set to take effect last November.

Peter Van Runkle, the Ohio Health Care Association's executive director, said it's unfair to "take away someone's right to enter into an agreement." In many cases, going to arbitration can be quicker, more efficient and less costly for everyone involved, he said.

Van Runkle said the proposed rules include safeguards to ensure that no one is coerced into signing something they don't understand. For example, nursing homes would have to post visible notices if they use arbitration agreements, and those agreements would have to be fully explained to residents or their representatives.

"We disagree that this is something that is forced on people," he said.

LeadingAge Ohio, a group representing nonprofit nursing homes and other services for seniors, took a neutral stance on the changes.

A statement from Kathryn Brod, the group's president and CEO, acknowledged arbitration's advantages and disadvantages, but added that such agreements should never be a condition of admission into a nursing home and must be "properly structured."

More information about the proposed changes is available online at cms.gov. Submitted comments can be read at federalregister.gov.

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©2017 The Columbus Dispatch (Columbus, Ohio)

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