Attorney General Shapiro Takes Action to Protect Seniors’ Rights in Nursing Home Contracts

August 8, 2017 | Topic: Rights

HARRISBURG — Continuing the fight to protect the most vulnerable Pennsylvanians from predatory business practices, Attorney General Josh Shapiro today called on the Centers for Medicare and Medicaid Services to reject efforts to roll back protections that allow nursing home patients who have been victimized to have their day in court.

Attorney General Shapiro and 16 other Attorneys General sent comments to the Center for Medicare and Medicaid Services, recommending that CMS keep in place a rule that prohibits pre-dispute arbitration clauses in nursing home and long-term care contracts. Pre-dispute arbitration clauses require seniors to waive their rights to go to court to resolve any dispute with a nursing home.

Pennsylvania is home to 2.2 million seniors and has the 5th highest number of seniors in the country, behind only Florida, Texas, New York and California.

“I have the responsibility of protecting our most vulnerable citizens, including seniors living in long-term nursing care facilities,” Attorney General Shapiro said. “If we allow nursing homes to include pre-dispute arbitration clauses in admission contracts, our seniors will have less access to the courts and to justice.  I won’t stand by while seniors lose their rights.”

In the comments sent Monday to CMS, the attorneys general state:  “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. The contractual provisions may be neither voluntary nor readily understandable for most consumers.”

In 2015, states submitted comments to CMS in support of a proposed regulation to bar pre-dispute arbitration clauses in long-term care contracts. CMS issued its final rule in October 2016, which prohibited the use of pre-dispute arbitration clauses, citing the comments of the attorneys general in support.

Following the final rule by CMS, the American Health Care Association (AHCA) and a group of nursing homes filed suit against the regulation. In June 2017 and in response to the AHCA lawsuit, CMS proposed reversing the rule and removing the prohibition on pre-dispute arbitration clauses in long-term care contracts.

Attorney General Shapiro was joined by the attorneys general of Maryland, California, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Iowa, Maine, Massachusetts, Minnesota, New York, North Carolina, Oregon, Vermont and Washington in today’s filing.

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