The owners of the Citadel nursing home in Salisbury have invoked a new federal law that could allow them to avoid being sued by patients who contracted or died from COVID-19 while under its care.
Recent court documents show that Accordius Health, LLC, a for-profit company that owns 90 nursing facilities in nine states, has petitioned a judge to toss a lawsuit filed by two residents’ powers of attorney.
Instead Accordius is arguing that before being admitted to the Citadel, residents — or their legal representatives — signed documents agreeing that all disputes would go to confidential arbitration proceedings rather than be publicly heard in court.
The Citadel is also known as the Salisbury Center.
Wallace & Graham and Gugenheim Law are suing Accordius Health on behalf of Thomas Del Marshall and Robert Leroy Whitlach “seeking a comprehensive view of the facility’s policies” to prevent further neglect. The firms and their clients are not asking for monetary damages.
Since early April, the Citadel has reported 113 cases of COVID-19 among its residents, the highest number of all nursing facilities in North Carolina, according to state records. Eighteen residents have died. Of the staff, 44 have tested positive for the disease.
A one-star facility — a “much below average rating” — the Citadel was cited for abuse by the Centers for Medicare and Medicaid Services last fall.
“Despite the company being responsible for significant nursing home outbreaks, the company filed documents in court attempt to enforce arbitration agreements upon residents who want justice – preventing residents from having their day in court before a jury,” attorney Mona Lisa Wallace wrote in a prepared statement. “The company seeks to keep the proceedings confidential and to keep information hidden from the public. The company further seeks to keep the lawsuit out of the state court or in the county where the facility is located, where loved ones and elders are sick and dying even today.”
Under the Obama administration, CMS banned such pre-admission arbitration agreements. According to the Illinois Law Review, CMS passed the regulation because it believed “it is fundamentally unfair and almost impossible for residents or their decision-makers to give fully informed and voluntary consent to arbitration before a dispute has arisen.”
The nursing home industry sued and a federal court suspended the rule. Then in 2017, under the Trump administration, CMS proposed a different rule, according to the American Bar Association, that “went to the other extreme.” That proposal allowed not only nursing homes to take cases to arbitration but made signing the agreement a condition of admission to the facility.
Finally, a rule enacted last September allows for arbitration, but not as a requirement for admission to a facility.
Arbitration proceedings are confidential, so no evidence can be publicly disclosed; nor is there a jury trial. It is also difficult to appeal an arbitration.
Even if residents could sue nursing homes on COVID-19 claims, it would now be difficult to win. North Carolina lawmakers passed, and the governor signed, an omnibus COVID-19 bill last month that gives immunity from civil lawsuits to these and other health care facilities. They could still be sued for criminal acts related to COVID-19, such as willful neglect, but the burden of proof in criminal cases is much higher.