Reps. Sánchez and Schakowsky Introduce Legislation to Protect the Legal Rights of Elderly Americans

April 22, 2021
Press Release
Send letter to Centers for Medicare & Medicaid Services urging immediate action to curtail the use of pre-dispute, binding arbitration agreements in long term care facilities

WASHINGTON – Congresswomen Linda T. Sánchez (D-CA) and Jan Schakowsky (D-IL) today re-introduced the Fairness in Nursing Home Arbitration Act to protect elderly Americans in nursing homes. This legislation would prohibit long-term care facilities from requiring or soliciting residents to enter into pre-dispute, mandatory, binding arbitration agreements.

“Families deserve peace of mind when making the difficult decision to move a loved one into a long-term care facility,” said Congresswoman Linda T. Sánchez. “I’ll never forget the days when we moved my father and, recently my mother, into nursing homes. My family and I weren’t thinking about the language or the fine print in the agreement – we were focused on my dad and my mom. We were focused on making sure they had the best care, their room was ready, and that they were going to be ok. This bill ensures families aren’t forced into contracts and agreements that could hurt them down the line, especially at a time when their focus is on the wellbeing of their loved one. I urge my colleagues to support this legislation and join me in protecting our elderly parents, their family members, and loved ones from harm.”

“Every day, families make the lifechanging decision to bring their loved ones to nursing homes all around the country, with the expectation that they will receive the high-quality care and comfort they need,” said Congresswoman Jan Schakowsky. “Unfortunately, many of them unknowingly sign away their right to seek justice when something goes wrong and are forced into an often unfair arbitration process should a nursing home resident be harmed. Even before the COVID-19 pandemic, this had detrimental effects on families and nursing home residents. We must say no to mandatory arbitration. Whether it’s willful neglect or a simple accident, residents and their families should have the right to seek justice in front of a judge and jury, not in a conference room.”

Rep. Sánchez first introduced the Fairness in Nursing Home Arbitration Act in the 110th Congress after hearing numerous testimonies during her time as Chairwoman of the House Judiciary Committee’s Subcommittee on Commercial and Administrative Law.

This legislation is endorsed by:

  • AAJ
  • AARP
  • California Advocates for Nursing Home Reform
  • Center for Medicare Advocacy
  • Justice in Aging
  • Long Term Care Community Coalition (LTCCC)
  • National Academy of Elder Law Attorneys
  • National Association of Local Long Term Care Ombudsman (NALLTCO)
  • National Association of State Long-Term Care Ombudsman Programs (NASOP)
  • National Consumer Voice for Quality Long-Term Care
  • Public Citizen
  • Service Employees International Union (SEIU)

 

American Association for Justice CEO, Linda Lipsen: “Think of all the horror stories we keep hearing about nursing homes, especially over the past year where some facilities were completely inadequate at infection control. Forced arbitration only serves to bolster the rampant abuse, neglect and other care problems that exist in nursing homes. We commend the sponsors of the bill, Representatives Linda T. Sánchez and Jan Schakowsky, and call on all members of Congress to stand with nursing home residents and their families by passing this critical bill.”

Senior Vice President of Government Affairs at AARP, Bill Sweeney: “When individuals and their families make the difficult decision to enter a nursing home, often in emergency situations, they should not have to worry about signing away their legal rights through mandatory arbitration agreements. AARP supports the Fairness in Nursing Home Arbitration Act because it would prohibit these fundamentally unfair contract provisions. In the heartbreaking cases where loved ones in nursing homes are abused or injured, they should not lose access to the judicial system. We thank Representatives Sánchez and Schakowsky for their important work on this issue.”

Center for Medicare Advocacy Chiplin Fellow, Cinnamon St. John: “A nursing home admission is often difficult and emotional. The focus at that time must always be on ensuring resident comfort and high-quality of care – not making binding legal decisions about unknown future preferences or needs. The Fairness in Nursing Home Arbitration Act will safeguard families and residents across the long-term care spectrum from signing away their legal rights when they are not in a position to clearly decide what is in their best interests.”

Long Term Care Community Coalition: “Pre-dispute arbitration agreements are inherently unfair to residents and families. When a resident enters a facility, they are not likely to be in a position to truly consider what future problems may occur. Most people are overwhelmed by the situation and trust that the nursing home is providing them with paperwork to sign that is both necessary and in the resident’s best interest. Nobody knowingly enters a nursing home expecting that they will be abused or neglected.”

Justice in Aging: “Currently, many persons entering nursing homes are tricked or pressured into signing away their rights.  The Fairness in Nursing Home Arbitration Act will prohibit such unfair practices.  Justice in Aging thanks Representatives Sánchez and Schakowsky for their important work protecting vulnerable nursing home residents.” 

Public Citizen Counsel for Civil Justice and Consumer Rights, Remington Gregg: “We thank Reps. Sánchez and Schakowsky for being champions for seniors. If seniors are injured, abused, or otherwise harmed, they and their families should have peace of mind that they will be able to hold corporate wrongdoers accountable in court and receive the justice they deserve.”

The National Consumer Voice for Quality Long-Term Care: “The National Consumer Voice for Quality Long-Term Care thanks Congresswomen Sánchez and Schakowsky for their leadership in protecting nursing home residents and individuals receiving Medicaid-funded home and community -based services from forced pre-dispute arbitration agreements. Such agreements are fundamentally unfair to consumers of long-term services and supports in any setting. They pressure people to decide how to settle a dispute - which could involve gross negligence, abuse, or even death - before a dispute arises and without any information about the dispute. Once signed, the individual loses forever their constitutional right to pursue action in a court of law. These agreements take advantage of consumers at their most vulnerable and stack the deck against them by frequently allow the long-term care provider to select the arbitrator, the rules for the arbitration process, and where the arbitration will be held. But pre-dispute arbitration agreements harm more than the individual who is seeking justice and accountability. Because the agreements usually are confidential, the public, including those looking for a nursing home, will never know the nursing home’s full track record - no matter how bad - because it is hidden.  After a year in which nearly 132,000 nursing home residents died of COVID-19 and countless others suffered from isolation and neglect, more protections are necessary to protect residents. We applaud both Congresswomen for their commitment to ending this shameful practice and upholding the rights of vulnerable individuals in need of care.”

 

Full bill text available here.

 

Shortly after filing this legislation, Congresswomen Linda T. Sánchez and Jan Schakowsky sent a letter to the Acting Administrator of the Centers for Medicare & Medicaid Services urging immediate action to curtail the use of pre-dispute, binding arbitration agreements in long term care facilities.

The full copy of text of the letter can be found here:

 

Dear Acting Administrator Richter:

We write as sponsors of the Fairness in Nursing Home Arbitration Act, which would prohibit long-term care facilities from requiring or soliciting residents, their families, or their guardians, to enter mandatory pre-dispute, binding arbitration agreements. The decision to transfer a parent or loved one to a long-term care facility is heart wrenching. Throughout the COVID-19 pandemic, we have seen firsthand that the focus of families with loved ones in these facilities is on the quality of care and range of services the facility will provide. In the midst of this life change, families may be under a great deal of stress and duress, with little ability to focus on the language in the agreements that limit their rights should something go wrong while their loved one resides in a nursing home.

In July 2019, the Trump Administration’s Centers for Medicare & Medicaid Services (CMS) released their final rule, “Medicare and Medicaid Programs; Revision of Requirements for Long Term Care Facilities: Arbitration Agreements” (CMS-3342-F). The rule effectively repealed the Obama Administration’s important and necessary ban on pre-dispute binding arbitration agreements in nursing homes.1 This rule failed to acknowledge the detrimental impact of forced arbitration on nursing home residents. Rather, it allowed facilities to again use pre-dispute, binding arbitration to hide failures in care and deny families and patients their day in court.

The Obama Administration’s final rule banned these “unconscionable” forced arbitration provisions because of the need for accountability for abuses within the industry. Prior to the Obama Administration’s rule, long term care facilities used forced arbitration as a mechanism to obscure shortcomings and deny residents and their family members justice. As a part of that proceeding, CMS duly noted that patients and their families would feel obligated to sign contracts for nursing home care, out of fear that if they did not, their loved ones would be denied care.

Pre-dispute, binding arbitration agreements are a violation of patient rights. As stated in 2015 by the Attorneys General of 16 states, “Pre-dispute binding arbitration agreements in general can be procedurally unfair to consumers, and can jeopardize one of the fundamental rights of Americans; the right to be heard and seek judicial redress for our claims. This is especially true when consumers are making the difficult decisions regarding the long-term care of loved ones.”2 We urge you to immediately take action to curtail the use of pre-dispute, binding arbitration agreements in long term care facilities. As Ways and Means Committee Chairman Neal stated in his February 25th letter to CMS, the pandemic will continue to have detrimental effects on the health and safety of our most vulnerable residents for the foreseeable future.3 We must ensure nursing home residents and their families are empowered to exercise their legal rights and that long term care facilities are held accountable for their actions.

 

Thank you for your attention to this important matter.

Sincerely,

 

LINDA T. SÁNCHEZ                                        JAN SCHAKOWSKY
Member of Congress                                         Member of Congress

 

 

 

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