It’s not that Donald Trump wants to beat up your grandma. It’s just that, if Godforbid your grandma gets beat up in a nursing home, he doesn’t want you to be able to sue the nursing home, which would be bad for business. WHY U MAD, BRO?
A year ago, the Obama administration outlawed mandatory arbitration clauses in admission agreements for nursing homes that receive Medicare or Medicaid funding. Because allowing care providers to slip some legalese into the fine print that shunted families down the wormhole of arbitration seemed like really shitty public policy. Does the average stressed out person navigating the process of getting care for her aging parents understand that language like this means she can never sue, no matter how badly the facility screws up?
Any dispute, controversy or claim arising out of or relating in any way to [the agreement/the relationship] including without limitation any dispute concerning the construction, validity, interpretation, enforceability or breach [of the agreement], shall be exclusively resolved by binding arbitration upon a Party’s submission of the dispute to arbitration. [In the event of a dispute, controversy or claim arising out of or relating in any way to [the agreement/the relationship], the complaining Party shall notify the other Party in writing thereof. Within thirty (30) days of such notice, management level representatives of both Parties shall meet at an agreed location to attempt to resolve the dispute in good faith. Should the dispute not be resolved within thirty (30) days after such notice, the complaining Party shall seek remedies exclusively through arbitration.]
And even if she does realize she’s signing away her right to sue, what choice does she have if every single facility in the state uses the same language?
In fact, the anti-arbitration regulation never went into effect because nursing homes and their trade group, the American Health Care Association (AHCA, but not the terrible House healthcare plan) filed a class action to stop it. Yes, the nursing homes filed a class action so they could stop those whiny patients from filing a class action. And they just happened to file their suit in Mississippi, where a friendly federal judge decided that the law violated the Federal Arbitration Act. So the AHCA delivered a nationwide injunction for its members, and patients got locked out of the legal system. The case is on appeal, but will probably be dismissed since the Trump administration is doing the AHCA a solid and killing the law.
Fun Fact: Mississippi courts found that an illiterate patient was still bound by the arbitration clause in his nursing home agreement. Because he should go without care until he learns to read, we guess?
The AHCA argues that it’s better this way. If nursing homes can get sued when they screw up, then it just drives up the cost of care for everyone. Clearly, those people suing over a little bit of elder abuse are the real moochers here, as an AHCA press release makes clear:
The Requirements of Participation final rule, issued by the Centers for Medicare and Medicaid Services (CMS) on September 29, will prohibit skilled and nursing care facilities from entering into pre-dispute arbitration agreements with residents at their centers, no matter how fair or beneficial those agreements may be to residents.
Which is probably news to Scott Barrow, whose 100-year-old mother Elizabeth Barrow was strangled by her 97-year-old roommate at a nursing home in Massachusetts. Mrs. Barrow’s family had asked to change rooms because of her roommate’s violent behavior, but was ignored by the staff. The arbitrator still found the Brandon Woods nursing home was entirely blameless for his mother’s death. Per NYT,
Mr. Barrow said he was optimistic but soon became disillusioned with the process. His legal team said they discovered that the arbitration firm running the hearing had previously handled more than 400 arbitrations for the law firm representing the nursing home company. […]
The arbitrator ultimately ruled in the nursing home’s favor but provided no explanation. His ruling consisted of a single check mark, indicating that Brandon Woods had not been negligent in its care of Mrs. Barrow.
Mrs. Barrow’s family had no recourse against the nursing home. At least the Commonwealth of Massachusetts arrested the 97-year-old roommate and charged her with murder. So justice was served!
Here on Planet Earth, arbitration is nothing like the panacea that nursing home lobbyists pretend it is. As the organization Fair Arbitration Now notes,
In arbitration, there is no judge, jury or right to an appeal. The arbitrators do not have to follow the law, and there is no public review of decisions to ensure the arbitrator got it right. Moreover, contracts typically name the arbitration that must be used – the one preferred by the company.
Forced arbitration frequently costs more than taking a case to court, and can cost thousands of dollars. Individuals often have to pay a large fee simply to initiate the arbitration process. Then in order to arbitrate, individuals sometimes have to travel thousands of miles on their own dime. In the end, the loser (usually the individual) often pays the company’s legal fees.
But the Trump administration is never going to pass up a chance to tilt the playing field in favor of corporations. So they announced their intention to repeal the Obama administration’s oppressive regulation this summer, and all public comments were due today. Do Boomers get that they now have zero recourse if an aide making $8 per hour leaves them to wallow in their own filth until they are covered in bedsores? Or are they too busy complaining about lazy millennials and their avocado toast to even notice?
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