Both use arbitration to fend off lawsuits—and keep their criminal conduct secret.
The New Republic / September 28, 2016 / by David Dayen
When tons of Wells Fargo customers discovered they were being charged fees on accounts they didn’t open—some
two million fake accounts created through the years, as we now know—they naturally wanted to sue. After all, the bank had used their personal information, taken their money, and impaired their credit ratings. But a few phrases buried in fine print slammed the courthouse doors shut.
All Wells Fargo customers have to sign
an arbitration clause when they open their (real) accounts. That means legal complaints will be referred to a secret panel outside the court system, with mediators selected by the bank itself. In the case of the fake accounts, the practice was pushed to absurd heights: Wells Fargo asserted the right to even force
these disputes into arbitration, on the grounds that the customer’s initial signature (to open another account) covers any and all grievances.
Consumer advocates and Democrats in Congress have screamed for years about corporations using arbitration to shield themselves from legal exposure (because they usually don’t allow for public disclosure). Wells Fargo’s ham-handed use of the system has
renewed these criticisms lately, but it’s hardly a recent phenomenon.
Some federal regulators have already acted to cut down on arbitration-abuse. In May, the Consumer Financial Protection Bureau (CFPB)
proposed a rule banning “forced”arbitration clauses
in financial services contracts—the ones that prevent class-action lawsuits, and that customers are required to sign.
Unfortunately, other regulators haven’t followed CFPB’s lead. In fact, the Center for Medicare and Medicaid Services (CMS), the federal agency that manages the health-care systems for the elderly and the poor, is on the verge of
finalizing a rule that will allow long-term care facilities to continue to use arbitration. And that, in turn, will enable the continued cover-up of elder abuse.
1.3 million Americans live in nursing homes, and practically all facilities include arbitration clauses in their admission contracts, which can run as long as 70 pages. “Senior citizens and their families, when they sit down to sign into a nursing home, it’s incredibly stressful and emotional,” says Tad Thomas, a consumer attorney in Kentucky who has worked on several long-term care cases. “When the administrator is putting documents in front of them, the last thing they’re thinking about is the effects of what they’re signing.”
“When the administrator is putting documents in front of them, the last thing they’re thinking about is the effects of what they’re signing.”
The prevalence of wrongdoing at nursing homes is shocking—from preventable falls to patient neglect to financial theft to even physical and sexual abuse. “I’ve seen photos of seniors in compromising positions put on social media,” Thomas says. “It’s really sad.”
The New York Times wrote earlier this year about a 100-year-old woman murdered by her 97-year-old roommate, whom the facility knew was a “risk to harm herself and others.”
According to a
report from the Inspector General of the Department of Health and Human Services, 22 percent of Medicare patients suffered “adverse events” resulting from the medical care in nursing facilities, and another 11 percent experienced temporary harm; more than half were preventable and due to failures in treatment or monitoring.
Arbitration agreements force victims of nursing homes out of the legal system when seeking redress. They also give them no ability to appeal rulings. Nursing homes can use the same arbitrators repeatedly, while an aggrieved family only sees them once;this biases the system, as arbitrators have incentives to rule in favor of the nursing home if they want to be chosen again for future mediations. The costs of the arbitration are often split between both parties, which places a disproportionate burden on the plaintiffs as well. (Most families, after all, are not as wealthy as your average nursing-home chain.)
Of course, any nursing-home company—any company, really—will tell you that arbitration is more efficient than protracted legal proceedings, and there’s some truth to that. But that efficiency has costs, and not only to patients and their families: Arbitration also blinds the public to official misconduct.
In most cases, information gleaned from arbitration cannot be made public. That makes it difficult to monitor and remedy deficient facilities and crack down on what appears to be a disturbingly consistent pattern of abuse. “The victim with the complaint is not able to get the word out,” says George Slover, senior policy counsel at Consumers Union. “There’s less accountability to society.”
Last year, when CMS issued its
proposed rule for long-term care facilities that participate in Medicare or Medicaid, it set standards for arbitration clauses for the first time. Standards are good. But sadly, the CMS took the wrong road: Unlike CFPB, it proposed to rely on “disclosure” rather than cut back on arbitration.
Under the proposed rule, nursing homes would have to explain arbitration agreements up front, when customers sign their contracts; they also wouldn’t be able to tie admission to the facility to signing the agreement. The rule also mandates “neutral” arbitrators and convenient venues, and allows residents or their families to communicate with law enforcement about any abuse.
Sounds sensible. But in practice, it’s difficult, if not impossible, to enforce neutrality in a secret process.
The nursing-home industry says CMS’s proposal is nothing new. “They’re prescribing us to do things that we, frankly, already do,” Clifton Porter II of the American Health Care Association, chief trade group for nursing home facilities,
told NPR last year (This hasn’t stopped the trade group from
opposing the rule, anyway; after all, it is a new rule, and no industry likes the sound of that.)
And that is part of the problem: “Disclosure” really doesn’t add up to much. “You can satisfy the requirement just by adding another form to the stack,” says George Slover—a former with boilerplate language affirming that the family knowingly enters into the arbitration agreement (whatever the heck that might be). That does nothing to solve the core problem that stressed families putting their loved ones in a nursing home aren’t focused on their future legal rights in that difficult moment. The rule also sets up a conflict of interest: The party ensuring that families understand their rights in arbitration has an incentive to get them to waive those rights.
And though the rule ostensibly prohibits nursing homes from denying admittance to people who refuse to sign the arbitration agreement, it’s unenforceable in practice; the nursing home isn’t required to actually tell the family that the patient can still get admitted without signing.
The worst effect of the CMS rule would be to institutionalize arbitration for nursing homes. Even the American Health Care Association (not exactly an unbiased party) found in 2009 that plaintiff awards are
35 percent lower through arbitration than through the courts. And if CMS allows arbitrations to go forward with minimal requirements, any incentive to make the proceedings truly fair to the consumer dissipates.
Consumer groups want an outright ban on up-front arbitration clauses; they’re OK with allowing it on a voluntary basis, if both parties agree to go to arbitration instead of the courts after a dispute happens. That’s also problematic, because nursing homes could engage in the same tactics post-dispute to cover up misconduct as they already do pre-dispute. But this process would at least allow victims to consider their options, rather than blindly signing away their constitutional rights. “The consumer can make a more informed decision,” says Rhonda Richards, senior legislative representative for AARP.
The Office of Management and Budget
completed its review on Monday, meaning the announcement of the final rule is imminent. It’s possible that CMS heard the chorus of voices seeking stronger protections; during the public comment period, they held out the option of going further. And the Wells Fargo precedent clearly shows that arbitration isn’t about efficiency or fairness, but secrecy.
If CMS fails to join CFPB in banning arbitrations, they’ll have put the public safety and well-being of thousands of seniors at risk. “Nursing homes don’t want to be held publicly accountable for their actions,” Tad Thomas says. “That’s a right that none of the rest of us have. If they get to hide what they’ve done, there will be no change to their behavior.”
