Nursing homes have complete control over some of the most vulnerable and fragile people in the entire country: people who are gravely ill, who are often cognitively impaired in ways that make it hard for them to protect themselves, are completely at the mercy of these institutions. Unfortunately, nursing homes are increasingly being taken over by huge corporate entities that are often driven more by profit than a sincere commitment to taking care of residents. Thousands of nursing homes across the country have been snapped up by large Wall Street companies. Sixty percent of the market is now occupied by for-profit entities, increasingly private equity groups. One report discovered that in 60 percent of the homes purchased, managers cut the nursing staff to the point where they were providing only one clinical registered nurse for every 20 residents.
John Mitchell, only 69 years old, was recovering from a stroke at a nursing home in Dennis, Massachusetts when — one week after he was admitted — staff dropped him while moving him from his bed to a chair. A call to an ambulance was made, but then cancelled when his vital signs seemed to stabilize. Later that night, John became unresponsive. After he was rushed to the hospital, doctors discovered that the fall had caused extensive bleeding in his brain; he died a few days later. It was only after his sons hired an attorney to investigate the circumstances surrounding their father’s death that they found — among dozens of pages in the admission contract signed by John’s guardian — a pre-dispute arbitration agreement.
Fortunately for John’s family, a court ruled the clause in their contract unenforceable. But that isn’t always the case.
The Obama Administration is seriously considering doing something about this. The Centers for Medicare and Medicaid Services has an opportunity to say that nursing homes can no longer receive federal funding if they use arbitration clauses in their contracts. If CMS will take this step, it will return to the nation’s most vulnerable population their basic constitutional rights, and let people hold nursing homes accountable in case of abuse and neglect. My organization, Public Justice, just filed extensive comments with CMS urging it to take this opportunity to protect these vulnerable residents.
The US Supreme court has already ruled that arbitration clauses must be enforced under the US Constitution (where the word “arbitration” is found in the Constitution is unknown at this time).
Nonetheless, businesses (generally the most dangerous ones with the highest profits) routinely use tons of contract filler, and fine print about how all litigation must go to arbitration, and most often, they rig it to an arbitrator corporation that is favorable to their position of no liability, ever.
Of course, the US constitution does not say that if someone breaches a contract they must submit to a tied in provider, but that is often the effect.
Let’s hope the consumers can get some relief from the Concepcion case which dictates that consumers must arbitrate, and often with anti-consumer arbitrators that throw consumer fraud cases right into the circular file.