Trump Administration moves to strip victims of nursing home neglect of their right to sue. - Mark P. Loftus

As recently reported by Robert Pear in the New York Times, the Trump Administration is moving forward on its promise to strip victims of nursing home neglect of the right to pursue justice in courtrooms. For years, nursing homes have included “no sue” arbitration clauses in the documents patients [or their loved ones] sign upon admission of the patient to the nursing facility. At the time of admission the clause is buried in reams of paperwork that sick people, or their worried loved ones, sign in order get the patient admitted. The clause is rarely mentioned and never discussed. But when the patient suffers a serious injury at the nursing home due to neglect, and files suit, the nursing home quickly moves to dismiss the lawsuit, citing to the same buried clause. The Obama Administration however, argued that sick, elderly patients needing long-term residential care often were not in a position to give fully informed consent to such clauses.

So in 2016, President Obama signed a Centers for Medicare and Medicaid Services[CMS] rule which precluded nursing homes from enforcing arbitration clauses if the nursing home accepted Medicare or Medicaid – and LOT of them do. So for a brief moment, the playing field was level. But it doesn’t look like it will stay level.

The Trump Administration is moving to scrap the 2016 Obama CMS rule, arguing it imposes “unnecessary or excessive costs on providers” of nursing home care. Trump administration spokesmen noted that the arbitration agreements are “….advantageous to both providers and beneficiaries because they allow for the expeditious resolution of claims without the costs and expense of litigation.” The money spent on lawsuits could be better spent on patient care – or so goes the argument. Nursing home interests of course are thrilled.

Patient advocates, predictably, are not. Attorney Generals from 16 states have issued strong protests against the implementation of the Trump rule. Additionally, 31 senators have objected to the Trump rule. They argue, as Obama did in 2016, that patients don’t fully understand the arbitration language in the contract so they cannot be viewed as knowingly consenting to it. Additionally, patients seeking admission to nursing homes often have little choice, as loved ones cannot provide appropriate medical care on an around the clock basis. The nursing home is in a considerably superior position, dealing with a patient who has two choices: 1) sign the contract and get access to appropriate medical care or 2) return to the home of a loved one without appropriate medical care, physically deteriorate and likely die.

In an effort to alleviate the harsh consequences of the bill, the Trump administration came up with some requirements that allegedly protect patients. One such requirement calls for the arbitration clause to be explained so that the patient understands it. But even nursing home interests acknowledge the proposed requirements were hopelessly vague.

In his last speech, Sen Hubert Humphrey (D. Minn) remarked in part that the moral test of a society is how it treats those in need, including the elderly or infirm. The proposed Trump rule fails that test.