Under Trump Rule, Nursing Home Residents May Not Be Able To Sue After Abuse The Trump administration is proposing to replace an Obama-era rule that would have made it easier for nursing home residents to sue for negligence or abuse.
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Under Trump Rule, Nursing Home Residents May Not Be Able To Sue After Abuse

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Under Trump Rule, Nursing Home Residents May Not Be Able To Sue After Abuse

Under Trump Rule, Nursing Home Residents May Not Be Able To Sue After Abuse

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AILSA CHANG, HOST:

Another Obama-era regulation is on the White House chopping block. This one's about nursing homes. The Obama administration's rule would have made it easier for nursing home residents to sue facilities for negligence or abuse, but the Trump administration intends to replace that rule with one that could make it almost impossible for nursing home residents to get their day in court. NPR's Ina Jaffe covers aging, and she filed this report.

INA JAFFE, BYLINE: Entering nursing home care can be a traumatic event, says elder law attorney Wendy York.

WENDY YORK: You're recovering from a major surgery. You're sick, and you have somebody pushing 50 pages in front of you to sign. You just start signing where they tell you to sign it.

JAFFE: One of the many papers that her client, Ed Winchell, signed was an agreement to go to arbitration if he ever had a dispute with the nursing home. This was the kind of thing that the Obama administration was trying to end. Winchell, who was 60 at the time, was at the nursing home to rehab from a broken hip. But soon after he arrived, he acquired an intestinal infection.

YORK: It's the type of infection that when you quickly identify it, it's easily treatable.

JAFFE: But, she says, it wasn't treated. After 10 days, it became so bad, Winchell called 911 on his own cellphone and went to the hospital, where they removed a large part of his colon. York says Winchell will suffer lifelong consequences.

YORK: Because after he eats, it sounds like "Saving Private Ryan" is going off in his abdomen. And he has to run to the restroom because everything goes right through him.

JAFFE: York tried to sue the nursing home, but because of the paper that Winchell signed, they're in arbitration instead. That means that no jury will ever hear his case. The parties hire a private judge and use a different set of rules that can be more restrictive than civil court. Studies also show that awards to plaintiffs can be as much as 35 percent lower. But supporters of arbitration praise it for being more efficient...

MATT WEBB: It's a system that is simpler, fairer and faster for all parties concerned...

JAFFE: ...Says Matt Webb, a senior vice president with the U.S. Chamber of Commerce's Institute for Legal Reform. The Chamber is backing the Trump administration's proposed rule. It would allow nursing homes to require new residents to agree to arbitration or be denied admission. Webb says getting arbitration deals set up in advance is crucial.

WEBB: The studies basically show that if arbitration agreement's not done prior to a dispute arising, very few, if anyone, ever really agrees to go into arbitration at that point.

JAFFE: The Trump administration's proposed new rule does require nursing homes to write these pre-dispute arbitration agreements in plain language and verify that they've been understood. Kelly Bagby, a senior counsel with the AARP Foundation, says requiring plain language still doesn't make it fair.

KELLY BAGBY: Because that gives with one hand this idea that it's transparent and takes away with another by saying, you don't have a choice but to sign this.

JAFFE: Also, arbitration procedures are generally more secretive than civil court, says Bagby. So they're not just bad for the plaintiff.

BAGBY: They're also bad for everybody else who's victimization could have been stopped if they'd have known that this was a bad facility.

JAFFE: The Obama administration's ban on arbitration agreements never took effect. The main trade group for the nursing home industry went to court and got a preliminary injunction. As for the proposed Trump administration rule that would replace it, the AARP's Kelly Bagby says she expects more legal action if that's ever adopted. When or if that might happen, the Trump administration hasn't said. Ina Jaffe, NPR News.

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