Summary: compulsory arbitration is a growing threat to elders and consumers in general. It is often best to try to avoid signing contracts that have compulsory, pre-dispute arbitration clauses. But, that may be impossible unless Congress changes the law. Until then do not give your durable power of attorney agents authority to agree to pre-dispute arbitration.
Suppose you moved your mother from her home to a nursing home. Two months later she is dead and you just know it was the fault of the nursing home. You want to sue in court. You can’t. You have given up your constitutional right to go to court. Instead you must “arbitrate” your claim.
Last week the United States Supreme Court ruled it is legal for a nursing home to force you to give up trial by jury and instead have arbitration of your case. The case is KINDRED NURSING CENTERS L. P. v. CLARK, decided May 15, 2017. It that case the elder was signed in to the nursing home by her daughter who was her agent – power of attorney. The court ruled that the federal Arbitration Act overruled the Clark’s Constitutional right to trial by jury.
This decision is the “tip of the iceberg” of a serious problem sweeping through business transactions with consumers. The day is coming when all businesses will require you to give up your rights to trial in court.
Why do we have trial by jury? And by jury we mean that the jury is made of average folks from the community. We have trial by jury because of our legal history going back to the Magna Carta signed by King John in 1215. It seems that before that the King was requiring trial by his appointed men, with the predictable results. The King won every time.
What is arbitration?
While there are many forms it boils down to an attorney, who should know something about the field of complaint, hears the parties’ evidence and makes a decision.
The advantage of arbitration is the speed and efficiency of a tribunal that is very familiar with an industry. We might say that arbitration grew out of the ancient English shipping law “Court of Cinque Ports.” That evolved into our law of admiralty, which is a highly specialized field of law. This is the same field of law that applies to the treasures of gold and silver coin found in ancient ship wrecks.
We can see that two companies in a specialized field may want to have a contract dispute settled by arbitration. They enter into a contract as equals. Both know the industry and what to expect of each other. Why go through the time and expense of waiting for a court date on a court’s congested docket, then educating a judge and jury about some arcane corner of industry when the parties can have a more accurate and efficient resolution by arbitration?
Businesses like arbitration because it is faster. Arbitration is faster than a trial in court. The results are more predictable. Often business parties’ pretty much know all the facts and only have a dispute on a limited area of their contract. They don’t want to wait for a trial date in a court over loaded with other matters civil and criminal.
So. Why isn’t speedy arbitration a plus for consumers?
The dispute is lop sided. The consumer has almost no information. The corporation has all the facts, all the records and all the witnesses. It takes time for the consumer to learn all the facts. One might briefly reflect on cases where a government official is convicted of a crime like taking bribes years after the bribes. It often takes years for investigators to get all the facts. It is true in consumer cases, it takes time to get all the facts. Arbitration does not allow consumers enough time to get all the facts.
So. What is the problem?
Surprise! Consumers do not get as favorable results by attorney arbitrators familiar with “the industry.”
Forced consumer arbitration is a one-sided game. Consider the nursing home case. When you place your family member in the nursing home you do not “bargain as equals.” You do not hammer out the terms of the contract. A nursing home is a licensed medical facility. You are wholly dependent on the nursing home to take care of her.
It’s that way across the board. Consumers are not experts in business; not experts in medical care; not experts in finance. Take just one example. If you were expert in consumer law, which state law would you choose to establish the rules to apply to your case. Michigan? New York? California? Yet in business contracts with arbitration the state law is imposed on you.
National companies are sticking compulsory arbitration in all consumer contracts. If you read your three page fine print credit card agreement you may be surprised to find that you have given up your right to trial by jury and have agreed to arbitrate any complaint you have under the laws of another state. The same is true of your mortgage and almost everything you buy from a national or international company.
So. Is arbitration evil?
By itself, no. There are times you may agree that between waiting for a trial date and or having arbitration, the latter is the best choice. But, you would make this choice after you have all the facts and have narrowed your dispute, and had the chance to get the advice of your attorney.
What is a person to do?
Right now you should update your general durable power of attorney. Do not give your agent authority to agree to pre-dispute arbitration.
If it is too late and your aging parent cannot execute any new legal documents: do not sign any contract or lease for your parent that has a pre-dispute binding arbitration clause. If you are placing your parent in a nursing home, then cross out the arbitration section. If you cannot do that and there is no alternative nursing home, then arrange to have the contract presented to your parent to sign. That would require the admission person to explain it to the parent/prospective resident.
The best overall solution is for citizens to contact Congressional senators and representatives and let them know “compulsory pre-dispute arbitration” is fine for business but unfair to consumers. The Federal Arbitration Act should be changed so that it applies to businesses and not to consumers.
Here is a common problem. A nursing home finds that a resident is a lot of bother. He might be aggressive, she might require too much care and attention. The nursing home sends the resident to the hospital, then claims when s/he is ready to return, “no bed is available.” The hospital discharge planner finds another nursing home that is not acceptable because of the distance or the overall quality of the facility.
What can you do? Very few people know the answer to this problem.
Transfer to a hospital for treatment is not a discharge from the nursing home. A nursing home resident has a right to return to his “home.” If the nursing home claims it cannot meet the resident’s need, they most go through a formal discharge, and hearing if the resident appeals, and prove it cannot do the job. That is a tall order for a nursing home that is a medical facility licensed to handle a broad range of conditions.
Who says they must take their resident back? The folks who enforce the Medicare and Medicaid programs. Facilities that participate in Medicare and Medicaid must follow the regulations that go with the programs. Regulation 42 CFR 483.15(e)(1)(i) says
(i) A resident, whose hospitalization or therapeutic leave exceeds the bed-hold period under the State plan, returns to the facility to their previous room if available or immediately upon the first availability of a bed in a semi-private room if the
(A) Requires the services provided by the facility; and
(B) Is eligible for Medicare skilled nursing facility services or Medicaid nursing facility services.
If the facility contends it cannot meet the resident’s needs they must readmit him/her and then start formal discharge proceedings. 42 CFR 483.15(e)(1)(ii) states:
(ii) If the facility that determines that a resident who was transferred with an expectation of returning to the facility cannot return to the facility, the facility must comply with the requirements of paragraph (c) as they apply to discharges.
This last provision means that a nursing must readmit the resident and then give the 30 day discharge notice if they contend they cannot provide care for the resident. You can then appeal the discharge order and then at a hearing the facility would have to prove why they cannot take care of its resident.
You should also contact the Long Term Care Ombudsman 866-485-9393 who will help the facility remember their duties under the federal programs. And, of course, you may hire an elder law attorney to help you. You should find that the facility changes its mind and decides it can take care of the resident.
All the best,
Jim
A short note: I heard a program about retirement planning the other day. I won’t identify the fellows since almost all retirement planning advice carries the same assumptions and the same blinders.
The authors had the usual advice about savings and investment strategies to make sure your money lasts through retirement. The implied assumption is that you will live your golden years in security until suddenly “the Big One” takes you out. Trouble with the assumption is that folks are living longer, and the longer they live the more expensive life gets. Consider how many people above age 90 live like 65 year olds? How many drive, maintain their own home without help, make their appointments and pay their bills by themselves? Perhaps most live in apartments that are “independent” or assisted living. The cost ranges from $2,500 to over $6,000 per month. Kind of ruins the financial plans.
Let’s consider the foregoing, just pointless quibbling about the computations. I agree that life does not go according to plan and yet it is better to have a plan that stretches one’s life savings to live in reasonable comfort and style. After all what if a person does travel, buy new cars and clothes and then runs out of money at age 85? It is better to prudently plan.
Let’s go to another part of my first point. Retirement is about aging and aging is about declining independence and health in many retirees. How much decline a person experiences is often directly related to the quality of healthcare the person actually receives. I did not say the quality that is available, but the quality received. From my experience an elder needs a healthcare advocate, a “patient advocate” to get the best outcome. Why? One reason is the complexity of healthcare and related to that is the incessant cost cutting the health insurers demand.
Yes, the quality of one’s life depends having adequate finances, but for many it depends more on the quality of the medical experience. And that requires a patient advocate who is acting under the authority of a healthcare power of attorney. But even more, the patient advocate must be informed about public and private benefits (Medicare and private health insurance for example). For many elders across the country it has been a patient advocate who saved their lives.
And so, that is why this entry is a short note. The subject of how to get quality outcome of your healthcare experience when your provider is trying to cut costs is not just a blog article. It is more than one big chapter in the book on retirement planning. I’m working on that one.
All the best,
Jim
Here’s a “Medicaid Don’t” for you: Do not pay cash.
Many of our eldest of elders have always used cash to pay their bills. They grew up during The Great Depression when banks failed and people lost all their money. They would go to the utility company to pay their bill by cash. They paid for everything with cash. They continue that habit till today. It becomes a Big Mistake when children start helping their aging parent. Since Mom or Dad do not have a checking account the children will pay the bills themselves by their own checking account or credit card. THEN the children take cash for reimbursement. They don’t take an exact amount since the parent tells them to take something to pay for their gas.
When the parent goes into a nursing home and applies for Medicaid the Medicaid worker will ask for bank statements, typically about three months back. When the worker sees hundreds of dollars of cash going out every month, she will ask for an explanation. The family explains that the money was reimbursement for paying the parent’s bills.
The Medicaid worker faced with potentially thousands of dollars of cash withdrawals over the year will ask plus more bank statements plus receipts proving the claim. The family cannot meet the demand for all receipts. The worker can conclude since every dollar of cash is not accounted for, all the cash will be deemed gifted away and will impose a “divestment” penalty period. That means Medicaid will not pay the nursing home. The penalty period could be months long and the nursing home may sue the parent and child who got the cash.
Don’t use cash.
The cash nightmare can easily be avoided. Get a debit card on Mom or Dad’s account. Keep all purchases separate, including groceries, and you will have no problem with missing receipts. Keep any reimbursement “for your gas” separate. If the worker objects to reimbursement, even though you may have a right to reimbursement and can fight the worker’s decision, the amount will be very small.
Good luck.
New Years predictions are always popular around the first of the year. It’s a game we like to play: make a prediction and see how wrong we turn out to be! After the presidential election we can make one prediction with certainty: anybody claims to knows what will happen will be proven wrong.
However.
There are clear signs of what is coming and what that means for elders. The old saying “There is nothing new under the sun” applies here. President (elect at this time) Trump promises to get the American economy booming again. His proposals have been heard, and implemented, many times before. He promises to cut taxes on business and cut regulations. These things have predictable consequences for elders who rely not on jobs, but on government programs. There will be less money for programs and more costs imposed on program users.
My predictions then are: Medicare recipients will see higher premiums for Medicare B and higher monthly premiums on prescription plans. Recipients will pay more in copays and deductibles. Medicaid will see more government, both federal and state, regulation resulting in families keeping less property. Asset sheltering options will become harder to get. Medicaid estate recovery after the death of the Medicaid recipient will get more aggressive. More family homes will be lost to the government. In the tax area elders may see less tax deductions and credits. Just last year in Michigan many elders lost their valuable homestead property tax credit. In short I am predicting there will be winners and losers. Elders will fall into the losers camp.
None of the above has to come true. If elders and their families are vigilant, if they stay in contact with their senators and representatives these things will not come true. And even if they do in spite of our advocacy then we’ll throw the bums out in the next election!
A final note. Don’t misunderstand what I mean elder advocacy. In times of need, elders know what shared sacrifice means. Just ask the “Greatest Generation” about sacrificing. But I don’t see the need for elders to sacrifice. After all when it comes to tax cuts for businesses and for the millionaire and billionaire business owners/CEOs, there will be no sacrifice. Just big tax cuts.
Be vigilant, informed and “make a lot of noise”!