Judy McGinnis: Give Grandma and Grandpa their day in court
September 11, 2017
What if a company harms you or causes your death but you signed an agreement where you gave up the right to your day in court? It could happen if President Trump reverses a “burdensome regulation.”
Many nursing homes include a requirement in a multi-page admissions agreement to consent to “forced third-party arbitration” before admission so if there is ever a dispute between you and the nursing home, you can’t sue, but only go to arbitration. Arbitration doesn’t sound bad, but it can be.
Legitimate arbitrators are certified and appointed by the court when a judge determines it appropriate. So what is the problem?
In these agreements you not only give up your right to sue, you agree that the nursing home can choose the arbitrator and the state where the proceeding will occur. You aren’t trading a court for a fair arbitration process, you are trading a court for a proceeding before a “judge” who was picked and paid by the defendant and can be hired again by the defendant.
The American Arbitration Association has a policy of not administering medical care cases where agreement to go to arbitration is prior to the dispute. So who are these other arbitrators?
Forced arbitration is secretive. Unlike court disputes, which are public, arbitration takes place in private. Often complaints and settlements are secret, meaning a nursing home could have a history of bad practice, neglect, abuse and you couldn't know. Decisions may not be appealed, and because this is not a court proceeding, arbitrators do not need to follow the law.
Recommended Stories For You
In 2016, President Obama signed a rule to prevent any nursing home receiving Medicare or Medicaid funds from enforcing a “no sue” rule (CMS rule) for new patients.
Not happy, the American Health Care Association, the nursing home group, sued to prevent this from taking effect. It’s ironic, they sued to prevent others from being able to sue.
President Trump wants to remove the rule because arbitration "allow(s) for the expeditious resolution of claims without the costs and expense of litigation," as well as being another burdensome regulation.
Over 75 consumer groups, 16 state attorneys general and 31 senators have objected to the Trump proposal to remove the rule.
Granted, not all disputes need to land in court or be decided by a judge. If a dispute is appropriate to go to arbitration, it should be agreed to willingly by both parties and the outcome should be decided by a neutral party, not by one chosen solely by the nursing home. The elderly and infirm rely on us to protect them and their rights, and we must.
We cannot allow the CMS rule to be revoked. This is not a political issue; this is a human rights issue.
Please contact Senator Bennet, Senator Gardner and Congressman Tipton to tell them to protect our elders.