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GGNSC Chestnut Hill LLC v. Schrader

United States District Court, D. Massachusetts

March 31, 2018

GGNSC CHESTNUT HILL LLC d/b/a GOLDEN LIVING CENTER -HEATHWOOD; GGNSC ADMINISTRATIVE SERVICES LLC; GOLDEN GATE NATIONAL SENIOR CARE, LLC; GGNSC HOLDINGS LLC, Plaintiffs,
v.
JACKALYN M. SCHRADER, AS THE PERSONAL REPRESENTATIVE OF THE ESTATE OF EMMA J. SCHRADER, Defendant.

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

          DOUGLAS P. WOODLOCK UNITED STATES DISTRICT JUDGE.

         Jackalyn Schrader, is the personal representative of her mother's estate. She brought a wrongful death action in state court as a result of the death of her mother at a nursing home. In response, the nursing home entities (collectively “GGNSC”)[1] brought this federal court action to compel Jackalyn Schrader to arbitrate the dispute pursuant to the Federal Arbitration Act.

         I. THE BROAD AND CONTESTED LEGAL LANDSCAPE

         This case is an example of the many skirmishes that continue along the recently intensifying - but wavering - battle line between those who support resolution of disputes by arbitration and those who support resolution of disputes by conventional litigation.

         There has historically been a strong public policy preference toward arbitration both federally and in the state of Massachusetts. See Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 62 (1995) (federal policy favoring arbitration) [Stevens, J]; Miller v. Cotter, 863 N.E.2d 544, 547 (2007) (Massachusetts policy favoring arbitration). So long as arbitration agreements are not invalidated through contract defenses, such as fraud, duress, or unconscionability, they have generally been viewed as valid in the nursing home context. See Miller, 863 N.E.2d at 544.

         Nevertheless, a contrary public policy view has asserted itself in some state courts and then has been rejected by the Supreme Court of the United States. See, e.g., Extendicare Homes, Inc. v. Whisman, 478 S.W.3d 306 (Ky. 2015) rev'd sub nom. Kindred Nursing Center, Ltd. v. Clark, 137 S.Ct. 1421 (2017); Brown v. Genesis Healthcare Corp., 724 S.E.2d 250 (W.Va. 2011) rev'd sub nom. Marmet Health Care Center, Inc. v. Brown, 565 U.S. 530, 132 S.Ct. 1201 (2012) (per curiam).

         In 2016, during the last year of the Obama administration, the most concerned federal administrative agency rejected arbitration agreements in the nursing home context when the Department of Health and Human Services Center for Medicare and Medicaid Services (“CMS”) issued a new rule (the “2016 Rule”) effective November 28, 2016, prohibiting Medicare and Medicaid-participating long-term care facilities from entering “into pre-dispute binding arbitration agreements with their residents or their representatives.” 81 Fed. Reg., 68800 (October 4, 2016) (to be codified at 42 C.F.R. § 483.70(n)). By terms, that new rule, however, did not apply retroactively, and CMS made clear that it would “not have any effect on existing arbitration agreements or render them unenforceable.” Id. Ultimately, I need not weigh in on the validity of the CMS rule because I am examining an agreement that was signed in 2013, well before this rule was enacted. It is sufficient for purposes of the matter before me to observe that the CMS rule is not to be applied retroactively.

         Moreover, enforcement of the 2016 Rule has been enjoined and the new Trump administration has proposed a newer rule to replace it. Shortly before the effective date of the 2016 Rule, Judge Mills in the Northern District of Mississippi entered a preliminary injunction barring its enforcement. Am.Health Care Ass'n v. Burwell, 217 F.Supp.3d 921 (N.D. Miss. 2016). While the government had appealed this decision to the United States Court of Appeals for the Fifth Circuit in the waning days of the Obama administration, see Am.Health Care Ass'n v. Price, appeal docketed sub nom. Am.Health Care Ass'n v. Burwell, No. 17-60005 (5th Cir. Jan. 6, 2017), the new administration published a proposed revised rule reversing the 2016 Rule banning nursing home arbitration, 82 Fed. Reg. 26649 (June 8, 2017), 2017 WL 2462165, and coincidentally moved to dismiss its appeal of Judge Mills's injunction. Am. Health Ass'n v. Price, No. 17-60005 (5th Cir. Jun. 2, 2017).

         Prescinding from discussion of the resolution of the arbitration question as a categorical matter at the highest judicial and executive levels, I must also note that even within regimes where the general applicability of a policy favoring arbitration is acknowledged, or at least finally acquiesced in, hand to hand combat over the conditions precedent can be a proxy for the broader controversy regarding the public policy of dispute resolution by arbitration.[2] Thus, here, Jackalyn Schrader declined to concede that a valid agreement to arbitrate was formed as a matter of general contract law. Given the factual dispute about contract formation, I have found it necessary to act as factfinder on the question. The following Findings of Fact and Conclusions of Law set forth my determination that a valid agreement was formed and that Jackalyn Schrader must be compelled to arbitrate her claims against GGNSC.

         II. FINDINGS OF FACT

         On February 4, 2013, Jackalyn Schrader's mother, Emma Schrader (“Ms. Schrader”) was transferred by ambulance and admitted to Golden Living Center Heathwood (hereinafter “Heathwood”) in Chestnut Hill. Ms. Schrader began receiving care that day at Heathwood. Aside from the Consent to Treat document, which authorized the nursing staff to commence treatment, no paperwork or agreements were completed in order for Ms. Schrader to be admitted and begin receiving care at Heathwood.

         Katelyn LaTouf was the Administration Coordinator at the time of Ms. Schrader's admittance to Heathwood. She was responsible for completing admissions paperwork with new patients. As a matter of custom and practice, Ms. LaTouf would present new residents with a package or booklet of information and agreements (apart from the Consent to Treat, which was executed with the nursing staff). Ms. LaTouf has no specific memory of meeting Emma or Jackalyn Schrader or providing them with the paperwork now in dispute. While Ms. LaTouf usually discussed the paperwork with patients and their representatives, if a patient had a representative who was unable to sign paperwork at the time of admittance at Heathwood, it was Ms. LaTouf's practice either to mail the paperwork to the representative or to leave it for the representative to complete at a later time. It was Ms. LaTouf's general practice to allow the families of newly admitted patients to take the package of agreements, including the arbitration agreement, home to consider and have legal counsel review if they wished. However, on February 4, 2013, after Ms. Schrader was admitted to Heathwood, Jackalyn Schrader signed a document describing Ms. Schrader's “Inventory of Personal Possessions.”

         As part of her duties as a member of the nursing staff, Vanessa Desesa, RN, made a progress note in Emma Schrader's file on February 11, 2013 at 15:30, which stated, in part: “daughter will be in to sign paperwork and be present for Ativan trial.” Jackalyn Schrader signed three documents on February 11, 2013, including: a DNR Order, a No CPR Order, and a Consent to Withhold CPR. Jackalyn Schrader completed additional documents on February 14, 2013. She signed the Admissions Agreement on February 19, 2013. In addition to the Admissions Agreement, Jackalyn Schrader signed four other documents on February 19, 2013. On February 27, 2013, Jackalyn Schrader signed six documents.

         Three signed documents, including the Arbitration Agreement, were left undated. Ms. LaTouf testified that she signed the Arbitration Agreement on February 11, 2013 and does not recall personally seeing Jackalyn Schrader sign the agreement.

         Jackalyn Schrader testified that the signature on the Durable Power of Attorney document appeared to be hers; the signature on the Admissions Agreement appeared to be hers; the signature on the Arbitration Agreement appeared to be hers; the signature on the Acknowledgement of Receipt of the Department of Public Health Brochure appeared to be hers; the signature on the Authorization for Assignment of Insurance Benefits appeared to be hers; the signature on the Acknowledgment Page Regarding Valuables appeared to be hers; and the signature on the Mass. Health Application appeared to be hers. Jackalyn Schrader testified that it was her common practice to sign paperwork in blue ink. The documents presented to Jackalyn Schrader as initially offered during her testimony were black and white copies, and she stated that she could not verify her signatures unless she saw them in blue ink. In viewing the original and/or color copied versions submitted thereafter that Jackalyn Schrader signed, I find that she signed the following documents in blue ink: the Arbitration Agreement; Acknowledgement of Receipt of the Department of Public Health Brochure); Admission Agreement (dated 2/19/13); Authorization for Assignment of Insurance Benefits (dated 2/19/13); and Document Opening an RFMS Banking Account (dated 2/19/13).

         Ms. LaTouf testified that there was no requirement to sign the Arbitration Agreement for continued care at Heathwood. The Arbitration Agreement contained a signature line to accept the agreement and a separate signature line to decline the agreement. Nevertheless, although there was an option to either accept or decline the Arbitration Agreement, Ms. LaTouf only highlighted below the signature line that indicated acceptance of the agreement.

         Near the top of the first page of the Arbitration Agreement, in bold capital letters, the Arbitration Agreement, states: “This agreement is not a condition of admission or continued residency in the facility” (emphasis in original). On the top of the signature page of the Arbitration Agreement, the Agreement states in bold capital letters: “His [sic] agreement governs important legal rights. Please read it carefully and in its entirety before signing.”

         III. ...


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