Paul Bland

DOJ Disgraces Itself in Support of Nursing Homes

Cross-posted from CL&P Blog (originally published 9/10/08):

The United States Justice Department has completely disgraced itself. On July 30, 2008, Keith Nelson, Principal Deputy Assistant Attorney General of the United States, wrote a letter to the U.S. Senate Judiciary Committee in which he attacked S. 2838, a bill that would ban the use of pre-dispute mandatory arbitration clauses in nursing home contracts.

[Update: Yesterday, a coalition of consumer groups sent this response letter.]

Why does the United States of America oppose the idea that nursing home patients – perhaps the most vulnerable segment of our entire nation – should be given a choice of whether or not to take disputes (many of which involve medical neglect like untreated bed sores that become severely infected leading to serious disease or death, or elder abuse such as rape or murder of very old people) to court or arbitration?

Well, first Mr. Nelson argues that arbitration is better than the court system for nursing home residents. In his happy imaginary world, nursing homes insist that their patients submit to these contracts before they can receive medical treatment because the nursing homes WANT their patients to be able to get more money if the nursing home mistreats them. Mr. Nelson’s assertions on this point are actually contradicted by the nursing home industry itself – nursing home lobbyists and lawyers openly acknowledge that the entire POINT of their mandatory arbitration clauses is to reduce their liabilities (no matter what they have done).

The second point that Mr. Nelson makes is the really troubling one, though. According to Mr. Nelson, the United States Congress does not even have the POWER to regulate the contracts of nursing home residents, because nursing homes are supposedly not within the scope of the interstate commerce clause. This is not just misguided federalism, this is nonsense on stilts.

At the outset, his statement would only be true IF:

* Every patient in a nursing home had been born and raised in the state where the nursing home was based. (It’s like the U.S. hasn’t noticed that lots of retirees MOVE to states like Florida and Arizona.)

* All the employees in the nursing home would have to have been born and raised in that state. (A ridiculous assumption.)

* All the food, all the medicine, all the furniture, all the equipment in the nursing home would have to have been grown, manufactured, etc., in that state. (A ridiculous assumption.)

If a nursing home patient went into court and told a judge "the Federal Arbitration Act doesn’t apply to this nursing home’s arbitration clause, because nursing homes are not part of interstate commerce," the lawyer would run a serious risk of being sanctioned for making a frivolous argument. The U.S. Supreme Court has twice rejected this kind of argument (in the Allied Bruce v. Terminix and Alafabco cases).

What’s even more troubling, is consider the implications of Mr. Nelson’s argument. If the position taken in the name of the United States to the Senate was true, then the federal government could not regulate ANYTHING that the nursing home does. So, under Mr. Nelson’s slipped-cog claims:

* nursing homes could refuse to hire, or treat, African-Americans, Latinos, or any other group, and none of the federal civil rights laws would apply. This is the official position of the United States in 2008? It’s almost as if Trent Lott got his wish and Strom Thurmond HAD won the 1948 Presidential election. It’s unbelievable that the United States of America would take this position today.

* nursing homes could pollute and be exempt from the environmental laws. A nursing home could take all of the sewage from its facility and dump it in a river just upstream from a school, and not be subject to the Clean Water Act.

It’s a pretty sad day when the official representatives of the United States will say pretty much anything in order to help the nursing home industry limit its liability, even in the ugliest cases. And these cases are ugly – we’ve helped families of nursing home patients who died after thousands of ANT BITES, we’ve helped families of women in their nineties who were trusted to a nursing home by their families, and then were RAPED by "caregivers" who never should have been trusted with such a position.

But it’s even sadder when the United States will go so far as to advance a theory which is not only demonstrably, obviously untrue as a matter of fact and completely unsupported as a matter of law, but that if it was true, would wind the clock back to the 1930s (or earlier).

The Justice Department disgraced itself when it let this letter out the door.

Paul Bland: Author Bio | Other Posts
Posted at 4:16 PM, Sep 11, 2008 in Arbitration | Civil Justice | Governmental Transparency | Legislation | Mandatory Arbitration | Right to Access the Courts
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Nonsense on stilts. I like that.

It frightens me to the core of my being that the justice dept has been so seriously coopted as to oppose a measure that would protect the choice of elderly people who've been victims of some of the most heinous abuses and who've suffered some serious injuries.

One thing I keep trying to explain is that this bill wouldn't completely take away a person's ability to arbitrate, if he or she so chose. It would just preserve the person's ability to choose.

Kudos to these organizations for their advocacy on behalf of a vulnerable population. Now, the rest of us should do so as well. This DOJ letter should be criticized in the news, everywhere. DOJ needs to be called out, and called out, then called out again.

Posted by: Kia Franklin | September 11, 2008 7:00 PM

Why does the US oppose unfettered, frivolous and weak cases against nursing homes, and demand the maintenance of arbitration clauses?

What are you, a child? Every penny that goes into litigation gets passed onto the taxpayer to generate worthless lawyer jobs. If it is not passed on, it limits access to care.

Posted by: Supremacy Claus | September 11, 2008 10:01 PM

Lawsuits limit access to negligent care.

Posted by: Kia | September 11, 2008 11:47 PM

An additional point is that the very same DOJ successfully defended in Gonzales v. Raich the ridiculous position that the federal government had the authority under the Commerce Clause to prosecute a medical marijuana user in California, who grew a total of six plants for her own use only. The DOJ's position on regulation of nursing homes would seem to be inconsistent with its position on medical marijuana.

Posted by: Bill Poser | September 12, 2008 4:19 AM

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Posted by: timothy moriarty | September 12, 2008 5:16 AM

It is accepted doctrine in law and economics that lawsuits deter the entire enterprise. There is zero evidence lawsuits deter negligent care. The lawyer goes after deep pockets, not necessarily responsible pockets. The overwhelming majority of claims are weak and outright frivolous. Immune judges promote rent seeking by their campaign contributors from the plaintiff and defense bars. The system has zero validity or effectiveness, except as a land piracy operation.

Posted by: Supremacy Claus | September 12, 2008 2:41 PM

SC, you're just spewing forth talking points and making no sense at all. Concrete examples abound of lawsuits leading to substantive changes from the responsible party and from parties similarly situated who want to avoid lawsuits for their bad behavior. And just as importantly, the individual victims are compensated. If you can't accept this reality then you're just deluded by your obsessive disdain for lawyers. We get it, you don't like 'em. But the way you're talking, seems like you don't give a darn about the victims either.

Posted by: Kia | September 12, 2008 4:07 PM

Kia: All safety advances have come from new technology. The latter has been burdened, delayed, and sometimes crushed by the lawyer. Patents kill innovation. Lawsuits at the first dollar of profit deters innovative enterprises. Obsolete competitors have plenty of regulations, walls of paper, and vicious land pirates to crush innovation.

Rebut me with a single such example, in which a lawsuit enhanced the safety of the public. I will show you how that technology was old and crushed by another lawyer made impediment.

Posted by: Supremacy Claus | September 12, 2008 7:27 PM