DOJ Disgraces Itself in Support of Nursing Homes

by Paul Bland

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.

Comments

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[Thomas Sharon, R.N., M.P.H]

Government records show that there are ten common mishaps occurring due to negligence to 25% of all nursing home residents across America:

Falls
Physical abuse
Sexual abuse
Wandering
Skin breakdown
Infection
Malnutrition
Dehydration
Over-filling of stomach and aspiration
Blood clots in the leg.
The common injuries from those mishaps are:

· Head trauma with brain hemorrhage

· Fractures of the hips, spine, limbs and ribs

· Large multiple pressure ulcers with exposure of muscle and bone; with infection and gangrene

· Aspiration pneumonia

· Pulmonary emboli

· Death

[Shelley]

PS I know you've already addressed the Supreme Court's view on the validity of the interstate commerce claim, but I'm wondering why someone in the DoJ would use this as an argument. After all, wouldn't they know the Supreme Court rulings related to the FAA, intimately, before sending such a missive to Congress?

Wait a sec...what am I saying...

Never mind.

[Shelley]

I'm not a lawyer, nor expert, but does it seem like the DoJ is setting this issue up for a Supreme Court challenge? Not just legislation related to nursing homes, but all legislation about limiting BMA agreements?

Also, and again, I am not knowledgeable on such things, but if the legislation has no power to legislate nursing homes because it exceeds Congressional scope under interstate commerce, wouldn't the same be said for the FAA, itself? I mean, if one part is invalid, wouldn't all parts be invalid?

[adolphus]

The spending power point is well taken, in the sense that there is much federal regulation of nursing homes tied to federal purse strings. But I don't think that the act in question ties abrogation of arbitration to the federal purse strings. So, I don't think the spending power would be a basis for upholding THIS legislation. In any event, there is obviously commerce power here, and that is the end of the matter.

[Donna Lenhoff]

The other shocking thing about DOJ's argument is that it pretends that no other basis for Congress to assert jurisdiction exists. In fact, nursing home practices are EXTENSIVELY regulated by federal law under Congress's Spending Power (as a condition of the nursing homes receiving Medicare and to a lesser extent, Medicaid, funding).

[timothy moriarty]

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

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[Linda Etherson]

Will someone please explain to me how an elected official can assume to have the right to strip any American citizen of his/her constitutional rights, simply because he/she is ill and elderly?

What say ye?

Linda Etherson, Knoxville, TN.

[Cindy]

We need to surgically separate corporate america from the american govt. Until that happens, this country will become more backward, corrupt, and disgusting, and more of a laughingstock to other developed countries. Someone once said we're "the richest third world country in the world." I agree. Stripping constitutional rights from citizens is taking a huge step toward being a third world country.

[J. M. Broersma]

Having helplessly watched as a family member parished from gross neglect while being trusted to a Nursing Home and it's resident doctor, I find this to be an enabling stance for the continuance of neglegent behavior. I do agree that our most vunerable of Americans deserve to be treated as the founders, this Nations stable force in days gone by. I believe their values in the struggles of their lives should be well respected into their grave.

I hope that public out cry causes a change of heart, it starts in the mind.

[stopcrooks]

The more frightening thing is that these senior DOJ officials go on later in life to become our judicial nominees.

[antoine]

I agree that nursing homes are in interstate commerce. But what case or cases stand for the proposition that if a consumer previously lived in state #1, moves to state #2, and enters into a transaction in state #2 with a local state #2 business, that transaction is one conducted in interstate commerce? I've never heard that. Please supply the authority for that. Thanks.