When the American Health Care Association sued the Centers for Medicare & Medicaid Services last year, my assessment was that it might win the literal battle, but lose the hearts and minds of consumers.
My thought at the time was AHCA was suing over the government’s desire to end pre-dispute arbitration not out of principle (although it contended the CMS ban violated the Federal Arbitration Act), but because it’s what its members wanted. Not that this idea is inherently bad: When you represent a large group of for-profit nursing home providers, you make calculated risks around how to show those providers that they need your organization. A large lawsuit against an agency providers hate over a policy they despise — especially under the auspices of what was expected to be a President Hillary Clinton — is a good way to show your pro-business bonafides.
Those who understand the long-term care industry can be sympathetic both to the shaky financial footing of many providers, who fear one lawsuit can drive them out of business, and worry about how pre-dispute arbitration agreements may be taking advantage of elderly folks. In October, I figured that while AHCA would prevail in court, the case would draw a huge amount of bad press and scrutiny since consumer groups would spin it as Big Bad Nursing Homes That Want to Hurt Old People. While AHCA went in guns-a-blazing into the fight, I doubt it’s a coincidence that LeadingAge — which represents purely nonprofits — has been, let’s say, a tad more meek in their support of arbitration clauses.
As we predicted which scenarios would unfold in 2017, very few of them were based on President Donald J. Trump winning the election. As McKnight’s Editor James M. Berklan wrote on Nov. 10, “while you’re calculating wins and losses from the election, be sure to put fans and advocates of arbitration clauses on the ‘winners’ list.”
At the time, the idea of a pro-business President Trump left many in the industry wildly optimistic — in hindsight, some might say naive — about what he could mean for long-term care. For all the rah-rah pro-business accolades AHCA and organizations like it tried to spin after the election, however, the GOP’s efforts to cut $800 billion out of Medicaid exposed some hard truths about what long-term care could expect from the country’s political leaders.
With arbitration, AHCA has a victory close at hand, with comments to CMS on a new proposal on the agreements having closed on Monday. CMS had agreed in June to drop its appeal. Basically, unless CMS Administrator Seema Verma decides to listen to 31 senators arguing for an arbitration ban, nursing homes, with some modifications, can return to whatever they did a few years ago.
Talk about a Pyrrhic victory.
AHCA may have started out with an intention of winning the fight for its members. It’s now aligned, at least on this issue, with a historically unpopular president, one who is seeing his support among Republicans and his base steadily dropping. As mainstream outlets looked at the story this week, consumers saw headlines such as “You May Lose Rights To Sue Nursing Homes, If Obama’s Rule Is Overturned” and “Senate Dems push Trump admin to protect nursing home residents’ right to sue.”
Does it matter? Maybe not. Perhaps winning, no matter how, is all that matters. But for an industry that talks at length about “telling our story” and making sure people know nursing homes aren’t bad places, this week of bad press around arbitration sure isn’t going to do much to help entice prospects.
Follow Senior Editor Elizabeth Newman @TigerELN.
