Something For Obama Voters To Look Forward To
2018-04-07 18:29:49 UTC
Obama-era rule that could limit legal recourse for nursing home
residents who allege abuse, sexual assault and neglect.
Centers for Medicare and Medicaid Services (CMS) plans to strip
nursing home residents and their families of the right to go to
court over those issues. It is not clear how soon the changes
would go into effect.
The rule that would be eliminated, established by the Obama
Administration, prohibited nursing homes that accept Medicare
or Medicaid funds from including language in their resident
contracts requiring that disputes be settled by a third party
rather than a court, according to The Hill.
CMS reconsidered the rule after a federal judge stopped it from
taking effect. Judge Michael Mills, of the U.S. District Court
for the Northern District of Mississippi, said the rule should
have been passed into law by Congress, rather than established
by a federal agency.
Reduced power in arbitration
If the Trump administration gets rid of the aforementioned rule,
a nursing home would be able to require all proceedings be held
in third-party arbitration, instead of court.
Arbitration is a private and simplified version of court
litigation. It involves the accused, the accuser, their
attorneys and an impartial mediator.
Unlike in a court of law, arbitration is informal, quick and
relatively inexpensive. However, there are significant limits on
consumers ability to get justice. Attorneys have less power,
the evidence and discovery process is limited, and there is no
right to appeal.
Because of these limits, businesses have long preferred
A 2015 study by the Economic Policy Institute found that in the
last 25-30 years, the power balance between companies and
citizens has shifted in favor of businesses and the use of
[I]t has become increasingly commonplace for corporations to
insert arbitration clauses into their contracts with customers
and employees, according to the study.
Instead of facing off in court, arbitration makes it so
consumers are required to take their complaints to a
privatized, invisible, and often inferior forum in which they
are less likely to prevailand if they do, they are less likely
to recover their due, the study states.
Mark Parkinson, the president and CEO of the American Health
Care Association, which led the Mississippi suit decided by
Mills, believes arbitration is not harmful.
The merits of allowing individuals in our centers and their
families this legal remedy are clear, Parkinson said in a news
release when the suit was filed.
Parkinson said that study after study shows that arbitration is
fair and speeds judgments in a cost-effective manner that
benefits those injured more than anyone else.
On the other side of the debate is the Fair Arbitration Now
Coalition (FAN), a group of 78 organizations that opposes
companies forcing arbitration upon consumers and employees. FAN
believes contracts should instead let people choose between
arbitration and court.
About half of the organizations in FAN, including Austin-based
Texas Watch, came out against the Trump administrations plans
this week with a letter to CMS.
Placing a parent or loved one in a nursing home is already one
of the most difficult things anyone will ever have to do in
life, according to the letter. But forcing the patient or
family member to then sign something that violates the
residents legal rights should they suffer future abuse or
serious neglect is a horrific thing to do to families.
The letter continues, this proposed rule is a disturbing new
direction for CMS, which should be protecting patients, not
making it easier for facilities to harm them and cover it up.
Here in Texas, nursing homes need considerable improvement. A
KXAN analysis of 1,162 Texas care facilities found nearly half
were rated as below average or much below average by CMS.
Nationwide, over 1,000 nursing homes have been cited for
mishandling suspected sexual abuse, according to a February
report from CNNs Investigative Unit. There were also 251 sexual
abuse complaints in Texas in fiscal year 2015, the report found.
The Centers for Disease Control and Prevention says there are 1-
3 million cases of serious infections in American nursing homes
every year among the 4 million residents nationwide. Those
infections lead to 380,000 deaths annually.
CMS stopped receiving public input on the rule on Monday. It is
reviewing the hundreds of comments it received, but has not said
when it will make a final decision.
Texas will start cracking down on nursing home
Next month, a new law will take effect in Texas that cracks down
on violations and abuse in the states nursing homes.
The legislature took action after records showed the states
Department of Aging and Disability Services only enforced fines
and license penalties in 40 out of 17,466 violations.
This new law, led by Sen. Charles Schwertner (R-Georgetown),
will make it more difficult for nursing homes cited for repeat
violations to avoid fines and penalties.
A January report from AARP Texas said the quality of nursing
homes in the Lone Star State is shamefully poor. It cites 454
violations of the highest severity level, meaning they put
residents in immediate jeopardy.