Last week, the government regulator for nursing facilities in the United States, the Centers for Medicare and Medicaid Services (CMS), effectively replaced a 2016 rule protecting residents’ right to access courts in the event of abuse or mistreatment in a nursing home, with a rule allowing for arbitration as the only option. Under the new rule that will take effect in September, nursing homes can add clauses to their contracts for new residents to forgo the option of filing a case in court, which will make problems in the system harder to address.
Residents who accept these new conditions will only have access to an arbitration proceeding, despite serious concerns about whether arbitration offers a fair and impartial hearing and a realistic chance at a remedy.
Without access to the courts, the potential for harm for hundreds of thousands of older people across the US is clear. A 2018 Human Rights Watch report found that nursing homes across the US routinely give antipsychotic drugs to residents with dementia to control their behavior, despite rules against the misuse of drugs as “chemical restraints.”
The 2016 rule banned the use of pre-dispute arbitration clauses, with CMS describing them as “fundamentally unfair” and having a “deleterious impact on the quality of care for Medicare and Medicaid patients” in nursing facilities, due to the bargaining power differential between residents and the facilities. CMS concluded that “residents should have a right to access the court system if a dispute with a facility arises.”
In summarizing its about-face last week, CMS disingenuously claimed this change will protect older people, saying, “This final rule supports residents' rights to make informed choices about important aspects of their health care.”
In fact by allowing this limitation on the right of nursing home residents to an effective remedy for alleged abuses and introducing the possibility that they can be barred from bringing lawsuits for such abuse, systemic problems or repeated offenses will go undetected. There is a reason that international human rights law protects an individual’s right to access courts for a remedy. A resident signing away their right to sue not only hurts individuals, it also forecloses the efficiency of the courts to improve the system for everyone.