Consumer groups, lawmakers disappointed but hopeful after arbitration ban blocked

Senator Al Franken (D-MN)
Senator Al Franken (D-MN)

Advocates for the federal ban on pre-dispute arbitration agreements expressed disappointment this week that a court stopped the ban from taking effect, but say they remain hopeful that the rule eventually will be implemented.

Sen. Al Franken (D-MN) told Bloomberg BNA that he was “disappointed” by the court's decision on Monday, but that he remains “hopeful that we can get this rule implemented.”

Franken, who was one of 34 Democrats who called for an outright ban on the use of arbitration agreements in nursing homes last year, added that he advocated for the ban “because seniors and families shouldn't have to sign away their legal rights in exchange for care.”

A similar view was expressed by the National Consumer Voice for Quality Long-Term Care, a Washington, D.C.-based advocacy group for long-term care consumers and their families.

“Residents and their families should have the same opportunity to take their disputes to court that the nursing home industry is now availing itself of,” the group said in a statement to McKnight's. “Instead, their rights will continue to be compromised by facilities requiring these unfair clauses. Not only would we like to see a more favorable court ruling, we think Congress needs to settle this matter once and for all and prohibit pre-dispute arbitration clauses.”

Richard Mollot, executive director of the Long Term Care Community Coalition, told McKnight's his group is similarly “saddened” by the injunction, and that they believe CMS had the legal authority to enact the ban.

“I know personally, from our work with families and residents across the U.S., that being in a situation where they are seeking redress for alleged abuse, neglect or substandard care is absolutely the last place they ever want to find themselves,” Mollot said. “ It is heart-breaking, and fundamentally un-American, when, in the face of resident neglect or abuse, families find that they have been stripped of their right to have their day in court.

George Slover, senior policy counsel for Consumers Union, echoed Consumer Voice's sentiments that Congress needs to intervene in the issue in comments to Consumerist. Consumers Union is a not-for-profit organization that advocates on a variety of consumer policy issues, including those related to healthcare.

“Congress could not possibly have intended for the Federal Arbitration Act to override every other law and leave consumers locked out of the courthouse without legal protection,” Slover said. “And the unfairness of that is brutally clear when you consider nursing home residents who are so dependent on their caretakers, and so vulnerable to neglect and abuse.”

The American Association for Justice, an advocacy group for plaintiff's lawyers, said the group is staying confident that the outcome of the legal battle over the ban will be in residents' favor.

The arbitration rule was slated to go into effect on Nov. 28.