Nursing home storms come in many forms
November 1, 2017
The Trump administration is planning to end another Obama-era regulation involving nursing homes, which was designed to shield the elderly from unscrupulous, abusive or bad nursing home practices.
At the end of the Obama administration, the Centers for Medicare and Medicaid Services (CMS) proposed rules that would’ve made it easier for nursing home residents or their families to take facilities to court over alleged abuse, neglect or sexual assault.
Now, Trump is proposing to replace that rule with one that could make it almost impossible for nursing home residents to get their day in court. But following the devastation from hurricanes Harvey, Irma, Maria and Nate, congressional Democrats are asking CMS to let nursing home residents take facilities to court over allegations like abuse.
In June, CMS announced plans to do away with the rule that prohibited nursing homes that accept Medicare or Medicaid funds, from including language in their resident contracts requiring that disputes be settled by third-party arbitration rather than a court.
The ruling was proposed by the Obama administration but never went into effect after the American Health Care Association (AHCA), the trade group for the nursing home industry, went to court and got a preliminary injunction to stop it. Now the Trump administration wants to change things by requiring arbitration.
When someone moves into a nursing home, residents are usually given an agreement requiring them to go to arbitration instead of suing if something goes wrong.
Think about when you might need to move into a nursing home. Elderly advocates argue the person involved is usually recovering from major surgery or is so sick they need to be institutionalized. When you are checking in, you’re handed lengthy agreements to sign. How many people in that situation can concentrate, read or even comprehend what they’re signing?
Going to arbitration means no court – and that means that no jury will ever hear the case. Many nursing home cases involve abuse, neglect and sexual assault. In arbitration, the parties hire a private judge and use a different set of rules that can be more restrictive than civil court. A 2009 study found that awards to plaintiffs can be as much as 35 percent lower, using arbitration.
Mandatory arbitration, many businesses argue, is a way to keep legal costs in check. The nursing home industry is following a huge nationwide trend that phone companies, cable companies, credit card companies and many others use giving customers a take-it-or-leave-it terms of service agreement.
Supporters of arbitration say it’s much more efficient. The U.S. Chamber of Commerce, which supports Trump’s proposed rule, argues it’s simpler, fairer and faster for everyone involved.
The new rule would allow nursing homes to require new residents to agree to arbitration. If they refuse, they could be denied admission to the facility altogether. It would require nursing homes to write these pre-dispute arbitration agreements in plain language and to verify that they’ve been understood by the resident and his or her family.
The AHCA supports the new proposed rule change, arguing that arbitration produces quicker resolution to disputes, compensates residents without the high costs and lengthy litigation time, and also saves Medicare and Medicaid money. But even the nursing home industry thinks the president’s proposal is too vague.
More than 75 consumer, health and advocacy groups like AARP have pulled together the Fair Arbitration Now Coalition to stop CMS from implementing the rules change. Rob Weissman, president of the advocacy group Public Citizen, described the move to the Los Angeles Times as “a heartless and vile act.”
“The Trump administration apparently thinks it is okay for nursing homes to force seniors into signing contract terms that give up their right to sue in court if they are subsequently victimized by neglect or abuse,” he said. “It’s hard to imagine a more callous policy.”
Attorneys General from 17 states and more than 30 Democratic members of the U.S. Senate have also urged the Trump administration to drop the proposed rule. In addition to the AGs and senators, a group of 46 House Democrats recently wrote a letter to CMS Administrator Seema Verma, urging her to reassess the administration’s position.
“These (arbitration) clauses are buried in the fine print of voluminous nursing home admission contracts and typically only accepted because they are unnoticed,” lawmakers noted. They pointed to the late September nursing home tragedy in Hollywood, Florida, where 12 residents died after Hurricane Irma knocked out the facility’s air conditioning.
“The horrific reports of abuse at facilities in Florida and Texas in the wake of Hurricanes Irma and Harvey underscore the need for your agency to reconsider upending the legal protections of those who have worked and saved for their entire lives to retire with dignity,” the lawmakers wrote. “This is a time when we should be protecting our nation’s seniors, not rolling back their fundamental right to hold wrongdoers accountable for neglect and abuse,” they added.
Kelly Bagby, a senior counsel with the AARP Foundation said requiring plain language might make it more transparent, but won’t make it fair. She warns that seniors entering nursing homes “don’t have a choice but to sign this,” she told NPR.
Arbitration procedures are generally more secretive than civil court, Bagby said. So they’re not just bad for the plaintiff, “they’re also bad for everyone else whose victimization could’ve been stopped if they’d have known that this was a bad facility,” she added.
The effects of mandatory arbitration have been studied extensively over the past few years as the practice has grown exponentially. While it requires people to give a professional arbitrator sole discretion over a dispute, what is not often talked about is that the arbitrator’s fee routinely is paid for by the business involved.
A 2007 report by Public Citizen, the consumer activist group, found that over a four-year period, arbitrators ruled in favor of banks and credit card companies 94 percent of the time in disputes with California consumers.
In announcing the rules change proposal, the Trump administration’s CMS said that requiring mandatory arbitration would “reduce unnecessary provider burden.” As L.A. Times opinion columnist David Lazarus wrote sarcastically in a recent column, “because that’s what this is about – the legal and financial burden on nursing homes rather than the well-being of senior citizens in their care.”
One thing is certain, legal action is likely when CMS moves forward with the new rules.
And then came the hurricanes
The recent hurricanes revealed another major problem about nursing homes – that many of them are simply unprepared for natural disasters or even more mundane emergencies. An examination of federal inspection records by Kaiser Health News (KHN) found many nursing homes rarely face severe reprimands, records show, even when inspectors identified repeated lapses.
What’s worse, the inspectors note that many nursing homes failed to prepare for easy-to-anticipate basic problems. One would expect most nursing homes would have a plan to deal with a hurricane, floods, or earthquakes if they are located in hurricane, flood or earthquake-prone areas.
But not being prepared for expected emergencies? Last spring, for example, inspectors found that an El Paso, Texas, nursing home had no plan for how to bring wheelchair-dependent people down the stairs in case of an evacuation.
Inspectors in Colorado found a nursing home’s courtyard gate was locked and employees did not know the combination, records show. When a fire hit a Chicago nursing facility, residents were evacuated in the wrong order, starting with the people farthest from the blaze.
The Kaiser report found that nursing home inspectors issued 2,300 violations of emergency-planning rules over the past four years. They labeled only 20 percent serious enough as to place residents in danger. In addition, a third of U.S. nursing homes have been cited for another type of violation: failing to inspect their generators each week or to test them monthly.
While these violations were not labeled as a major deficiency, more than 1,373 nursing facilities were cited more than once for neglecting generator upkeep, the records show.
Toby Edelman, a senior policy attorney at the Center for Medicare Advocacy, focused in on the key issue. “That’s the essential problem with the regulatory system: It misses many issues, and even when it identifies them, it doesn’t treat them seriously enough,” she told KHN. “It’s always the same story: We have some pretty good standards and we don’t enforce them.”
Nursing home and hospital deaths during Hurricane Katrina in Louisiana in 2005 prompted new federal disaster-planning rules which nursing homes must comply with by mid-November 2017. The deaths of eight patients at the Hollywood Hills Rehab Center in Florida following Hurricane Irma, have re-focused increased attention on the need for these rules.
While the industry says they get better at handling disasters after each one, elderly advocates say enforcement of rules is as great a concern if not greater.
Dr. David Marcozzi, an associate professor at the University of Maryland, who is a former director of federal emergency preparedness, urges that investigators should observe nursing home staff demonstrating their actual emergency plans rather than just checking that these plans would have been written down. “If you have not implemented and exercised plans, they are paper tigers,” Marcozzi argues. Instead, he says, the emphasis has to be: Show me how you do this.
The effect of high temperatures that elderly residents face, like those after Hurricane Irma, has been well-known for many years. In a heat wave in 2000, two nursing home residents in a Burlingame, Calif., facility died and six others suffered severe dehydration, health stroke or exhaustion. Inspectors have cited 536 nursing homes across the country over the past four years for failing to maintain comfortable and safe temperature levels for residents. In 15 cases, inspectors deemed the situation “serious” including two where patients were harmed, the records show.
Also contributing to this story were: NPR, Kaiser Health News and The Hill.