Daily Editors' Notes

Supreme Court's message to long-term care operators: You're not worthy

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John O'Connor
John O'Connor

It has been said that we are the residue of our choices. If that's true, what should we make of the Supreme Court these days?

In its most recent session, the nation's highest court decided to hear a case about whether closely held for-profit corporations should be exempt from a law they religiously object to, if there is a less restrictive means of furthering the law's interest. (As has been widely reported, the court sided with the company, Hobby Lobby).

I'm not going to get into which side had the better argument. Lord knows both are getting plenty of media coverage regurgitating their respective talking points. Rather, my concern is why the nation's highest court dubiously opted to hear this case — while at the same time ignoring one that would have been a much more sensible choice.

For reasons that are hard to fathom, the court refused to rule on whether an agreement to arbitrate disputes arising out of a resident's nursing home care is binding on the resident's survivors in a wrongful death action.

In rejecting a petition filed by Extendicare Homes Inc., the court essentially decided to sidestep an issue that a) remains very much in need of legal clarification, and b) will likely show up in courts more often going forward.

For those unfamiliar with the case, Extendicare asked the Supreme Court to resolve a conflict between a Pennsylvania appeals court's ruling and earlier rulings related to the Federal Arbitration Act. Extendicare also asked to court to resolve competing ways some states view wrongful death claims.

It would have been helpful for the nursing home sector — and the millions of families it serves — to get some much-needed clarification on these matters. In fact, these are exactly the kinds of legal issues that the nation's smartest legal minds should be untangling.

But while the court could have taken on this relatively straightforward contract law case, it said no thanks. However, when presented with a highly charged Hobby Lobby case that affected only a small fraction of the nation's employers, it jumped in with both feet.

Given the divide that exists on the court these days, perhaps we shouldn't be surprised that ideologically driven cases seem to keep rising to the top. But it is truly unfortunate that they keep taking priority over more deserving matters.

Frankly, you'd think the members of our highest court would use better judgment. At the very least, they should have better things to do.

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Daily Editors' Notes

McKnight's Daily Editor's Notes features commentary on the latest in long-term care news. Entries are written by Editorial Director John O'Connor on Monday and Friday; Staff Writer Tim Mullaney on Tuesday, Editor James M. Berklan on Wednesday and Senior Editor Elizabeth Newman on Thursday.


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