This whole idea of “Making America Great Again” is hard for me to wrap my head around. It seems to refer to some pristine, idyllic period in the past when all was harmonious, circa about 1850 or so.
Back in those days, I bet good citizens weren’t constantly being annoyed by those pesky lawyers that sue nursing homes for neglecting and abusing residents. These days, you can hardly drive down an interstate without seeing giant lawyers on billboards. There they are, standing back-to-back, their arms menacingly folded across their chests and no-nonsense looks on their faces. You can’t even relax and watch nostalgia television, like reruns of Rawhide, without being intruded on by one of their commercials.
I bet back around 1850 or so, upstanding Americans could travel on the interstate and watch Rawhide reruns in peace. That’s why Trump wants to take us back to that glorious time.
I bet back around 1850 or so, upstanding Americans could travel on the interstate and watch Rawhide reruns in peace.
In 2016, during the Obama Administration, the Centers for Medicare and Medicaid Services issued voluminous new, “requirements that Long-Term Care facilities must meet to participate in the Medicare and Medicaid programs.” This included a provision prohibiting long-term care facilities from entering into pre-dispute arbitration agreements with residents.
These arbitration agreements are all the rage these days. We’ve probably all signed them, whether we know it or not. They’re buried deep within the contracts we sign, like for when we get cell phone service. And when we sign them we give up all our rights to have our day in court if we have a dispute with the provider. We must instead submit to having the dispute go to an arbitrator.
When people are admitted to nursing homes, these kinds of agreements often hide in the paperwork. Justice in Aging, a national nonprofit legal advocacy organization that fights senior poverty through law, vigorously applauded the Centers for Medicare and Medicaid Services for prohibiting these.
“Arbitration agreements are generally considered bad for nursing home residents and other consumers,” the group wrote. “Arbitration can be expensive, and arbitrators are likely to favor the nursing home over the resident, since the nursing home may have ongoing business with the arbitrator. Also, the resident generally has no appeal rights, even if the arbitrator’s decision is clearly wrong.”
During the comment period after the regulations were proposed, the Centers for Medicare and Medicaid Services was urged by thirty-four senators to ban arbitration clauses. Sixteen state attorneys general submitted a letter asserting that these clauses were harmful to residents and should be banned.
But the Obama Administration’s desire to prohibit this practice struck a raw nerve with the American Health Care Association, which calls itself the, “nation’s largest association of long term and post-acute care providers.” The group says it advocates for the, “vitality of the long term care provider community.” By vitality, it means profits.
The association sued the government, seeking a preliminary injunction to keep this rule from taking effect, which a federal judge in Mississippi granted just days before Trump squeaked out an Electoral College win for President. In June 2017, the Trump Administration decided to rescind the rule and let nursing home operators continue to impose arbitration on residents.
In June, the West Virginia Supreme Court of Appeals overturned a lower court ruling that would have allowed a woman to sue a nursing home over allegations that substandard care resulted in the death of her mother, sending the case to arbitration.
That’s the kind of outcome nursing homes who mistreat patients—and the Trump Administration—likes to see. It’s what gets them nostalgic for the good ‘ol days.
Because, you see, back in the 1850s, when we checked ourselves or our loved ones into a nursing facility, we didn’t have any rights. There was no such thing as a class-action lawsuit. And, back then, America was the envy of the world.