Legislators, coalition bash binding arbitration agreements

Waxman: CMS should "do the right thing" and ban pre-dispute arbitration agreements
Waxman: CMS should "do the right thing" and ban pre-dispute arbitration agreements

A coalition of consumer groups and lobbyists, boosted by former U.S. Rep. Henry Waxman (D-CA), are calling upon the Centers for Medicare & Medicaid Services to “do the right thing” and end pre-dispute arbitration agreements.

AARP, the Fair Arbitration Now coalition and the National Consumer Voice for Quality Long-Term Care are among the groups that submitted formal comments and a petition to CMS Wednesday. They ask that the agency ban binding arbitration agreements from nursing home contracts. Wednesday marked the end of the 90-day comment period on CMS' proposed regulatory update for nursing homes, which includes potential revisions to arbitration agreements.

The American Health Care Association also weighed in to say CMS should abolish the proposal but for a different reason. The agency is attempting to “exceed” its authority, AHCA's top executive said.

“CMS's arbitration-related proposals should be withdrawn,” wrote AHCA President and CEO Mark Parkinson in a prepared statement. “These proposals exceed CMS's statutory authority and are not necessary to protect resident health and safety.

Waxman said the agreements need to be abolished because their sole function is to help nursing homes “evade accountability” for injuries and deaths caused by neglect and abuse.

“Once [residents] sign these agreements ... they are giving away their rights to ever go into court against the nursing home,” Waxman told reporters during a press call Wednesday. “Nobody should accept denial of justice as the price for the care their loved ones deserve.”

The coalition argued agreements are often signed by residents or family who don't fully understand the consequences of the pre-dispute arbitration, and are under stress from entering a nursing home. While CMS' proposed revisions include making arbitration agreements more transparent and clearer, critics say it still wouldn't be enough to protect nursing home residents.

“Simply put, no amount of requirements placed on pre-dispute arbitration clauses could make this practice fair in the nursing home context,” said Marybeth Williams, public policy associate at the National Consumer Voice for Quality Long-Term Care.

On Wednesday, 27 House of Representatives members sent a letter calling for similar legislation against forced arbitration. Reps. Hank Johnson (D-GA) and John Conyers (D-MI) spearheaded the letter. A similar letter was sent by 34 senators to CMS last month.