by Caleb Talley
When considering the most depraved group of lobbyists in Arkansas, one might not immediately consider nursing homes.
After all, nursing homes lend an incredibly valuable service to society, caring for our loved ones and providing the elderly with a cost-effective way to recover from injuries or operative care outside of a hospital. And our state has some of the finest nursing homes and rehabilitation centers anywhere.
But we have some bad ones, too. And unfortunately, there are greedy individuals working hard and spending a lot of money to look after them. There are also a number of dutiful lawmakers on their payroll, eager to do their bidding… even in a special session.
The Arkansas nursing home lobby just barely missed a chance to sink its teeth into the special session that just ended. In a brazen attempt to force through a backdoor tort reform law, Rep. Bob Ballinger and Sen. Jeremy Hutchinson filed identical bills that would make it possible for individuals or entities to unknowingly waive their constitutional right to a jury trial.
It was described as a “cleanup” bill, an attempt to protect businesses from lengthy, expensive court battles over seemingly elementary matters. Supporters cited a recent Arkansas Supreme Court case heard over a foreclosure as evidence of its necessity.
We know better.
The bill, as filed, would have allowed a jury-trial waiver provision to be added to any contract, including those for admission to nursing homes or hospitals, loans, insurance, leases, etc. Absolutely any business could add little snares to trip up the signatory, keeping them from a jury hearing if something went awry.
The bill makes it impossible for the signer to get out the contract by claiming they did not read, understand or agree to the waiver. It’s also irrevocable; once you have signed away your rights to a trial, you can’t get it back.
This legislation was a gift to a number of business lobbies, but none more so than the nursing home lobby – a match made in heaven! (Or hell) A carefully crafted waiver in a nursing home contract could forever keep elderly Arkansans from any legal recourse, making it easier than ever to get away with mistreatment, negligence and abuse.
But the identical bills were met with unexpected resistance, spurring Hutchinson to amend the Senate version. His amendment specified that jury-trial waivers would only be allowed in contracts that dealt with debt – still a thumb in the eye of consumers. He also took out the provision that made the waiver irrevocable. It passed overwhelmingly as amended.
Ballinger’s bill was shot down in the House Judiciary Committee almost immediately when a pair of Republican lawmakers, who are also attorneys, caught a whiff of dirty brown water trash. Ballinger, who was expecting it to pass quickly and quietly, said “special interests popped up” to defeat his bill. He was upset the Family Council, the special interest group he was referring to, recognized his measure for what it was: legislation to entrap people into unknowingly signing away their right to a jury trial. He didn’t expect anyone to stand up for elderly Arkansans.
But while we’re on the topic, let’s talk about special interests, including the ones that are supporting Ballinger.
Since his first bid for state office, Ballinger has been given upwards of $3,000 from Arkansas’ chief nursing home lobby, the Arkansas Health Care Association. That may not seem like much, especially when compared to the fundraising efforts of other state lawmakers. But consider that only one other contributor gave more to Ballinger during the same span of time. And he only put up half that amount of his own money through three elections.
Hutchinson, too, has taken thousands from the nursing home lobby – more than $10,000. Any time a bill is introduced in the legislature that would be bad for the elderly, you can almost guarantee there’s nursing home money behind it.
The Arkansas Health Care Association has worked hard over the past few years to make it harder for Arkansans to hold nursing homes accountable for negligence and abuse. And with the help of nursing home mogul Michael Morton and his checkbook, they’ve spent a ton of money in their efforts. In 2016, the group spent more than $300,000 campaigning for a Senate Joint Resolution to put a tort reform measure on the ballot this fall.
They succeed. The Senate resolution is now Issue 1 on this year’s ballot. If passed, the measure would cap the value of a human life and give lawmakers the ability to change or repeal pleading, practice or procedure rules, rather than the Supreme Court. The ultimate goal is to discourage Arkansans from filing lawsuits for damages and stacking the deck against them in the event that they do. And the nursing home lobby is leading that push.
Issue 1 is just plain bad for Arkansas. And that’s why I’ll be writing even more about it, the lawmakers who sponsored it, the nursing home lobby and Michael Morton in the weeks to come. Stay tuned.
In Cash & Candor, Arkansas Money & Politics / AY Magazine Editor Caleb Talley aims to shoot it straight when it comes to business and politics in and around the Natural State. Talley comes to AMP by way of the Arkansas Delta, where he called balls and strikes at the Forrest City Times-Herald. He can be contacted by email at email@example.com. Read more Cash & Candor here.