Love him or not, Trump could be your key man
James M. Berklan
Politics truly can make strange bedfellows. A great illustration of this could be the many nursing home operators who might think they don't like President-elect Donald Trump but really could end up loving him.
His victory Nov. 8 and the movement it embodied down ticket could be THE game-changer when it comes to the fate of arbitration clauses in resident agreements.
The ramshackle ride these controversial clauses took in just the opening days of November was mind-boggling. Providers went from threatened to conquerors to uncertain observers to lifeline receivers.
After the Obama administration's new rules of participation announced the clauses would be banned starting Nov. 28, the American Health Care Association successfully sought a temporary injunction against the actions.
That was followed, however, by sobering talk that the judge didn't like making his ruling in favor of the AHCA, and that the Centers for Medicare & Medicaid Services might still have enough to win a legal battle.
Judge Michael Mills gave arbitration opponents plenty of red meat in his 40-page ruling. He expressed discomfort with not siding with the purported consumer-oriented cause. In the end, the message seemed to be, “The law forces me to side with you now, providers, but it should be only a matter of time before Congress can come up with legislation to outlaw the arbitration clauses.”
Then came Election Day and the ascendancy of Trump and the Republicans. In January, they will have control of the White House and both chambers of Congress. That's called holding the hammer.
If Congress itself isn't strong enough to stave off an assault on arbitration clauses, a soon-to-be right-leaning Supreme Court could have the final say, should arbitration appeals reach that far. The White House and the Senate are the keys to filling the vacant seat.
But even before that would come into play, a Republican administration typically means good things for businesses, which nursing homes must be viewed as in this context.
Trial lawyers would not catch a break from this crowd, and that's also a good sign for nursing home operators. Republicans are historically strong on tort reform and placing limits on plaintiffs' lawyers.
If you're calculating winners and losers from the election, be sure to put fans and advocates of arbitration clauses on the “winners” list — as of this writing at least. What a roller-coaster ride it's been.