You have the right to “your day in court,” as the saying goes. When it comes to civil matters, the Seventh Amendment declares it a constitutional right: “In Suits at common law … the right of trial by jury shall be preserved.”
There’s no circumstance under which you should obligated to waive your right to go to court to seek justice. Certainly not when that circumstance is the effort to get a loved one admitted to a nursing home. For that reason, we’re dismayed at President Donald Trump’s administration’s plan to do away with a rule, enacted by President Barack Obama’s administration, that ensured nursing home clients’ right to litigate.
The Obama administration mandated that nursing homes which receive Medicaid or Medicare dollars were prohibited from including language in resident contracts requiring that disputes be settled by a third party rather than a court, TheHill.com reported Aug. 6. The Centers for Medicare and Medicaid Services announced plans in June to do with that rule.
More than 75 consumer, health and advocacy groups have come together to form the Fair Arbitration Now Coalition to stop CMS from reversing what they claim is a critical protection for the elderly.
Remington Gregg, counsel for civil justice and consumer rights at Public Citizen, said the rule change is not only unnecessary, but shameful.
Gregg said the provisions, known to lawyers as pre-dispute arbitration agreements, create an unequal balance of power between the nursing home and its elderly patients or the family members caring for them.
“When you are trying to get someone in a nursing home, often time it’s stressful or an emotional time. Often times loved ones can’t take care of themselves, so for a nursing home to say in order to get in you have to waive your right is shameful,” he said.
“We’re talking about everything you may have a problem with — abuse, neglect, sexual assault, a wide variety of things — they are now saying you are waiving your right to full justice.”
The U.S. Chamber of Commerce is backing the rule change. The nation’s leading business group fought against the original rule, claiming that restricting arbitration would raise the cost of nursing home care and make it harder, and more costly, for residents to resolve disputes.
“For many individual disputes, litigation in court is simply impractical. Litigation in court is procedurally complex, which means that non-lawyers need legal representation to have any hope of successfully navigating the system,” the chamber said in 2015 comments to the agency it provided The Hill.
We find the Chamber’s view of individual disputes rather patronizing. While litigation, yes, may require legal representation and could become costly, the decision to enter into litigation lies with the individual patient and his or her family members. Adult Americans are free to avail themselves of the legal system any time, anywhere.
If your loved one were to have been abused or neglected, would you want him or her to have forfeited their rights as an American citizen before your their first day in the home?
We would hope that nursing homes and their clients could settle their disputes without litigation, that both parties could act reasonably in such situations.
But no one should have to waive the right to a day in court in the interest of long-term care. There is no statute of limitations on constitutional rights.