WASHINGTON – Today U.S. Senator Herb Kohl (D-WI), chairman of both the Judiciary Subcommittee on Antitrust, Competition and Consumer Rights and the Special Committee on Aging, and Senator Mel Martinez (R-FL) were pleased to announce that the U.S. Senate Judiciary Committee approved their legislation, the Fairness in Nursing Home Arbitration Act of 2008. If passed by the full Senate, the bill would protect nursing home residents from losing the right to hold long-term care facilities accountable in court for negligent and abusive care. 

 

In June, Senator Kohl chaired a joint hearing on pre-dispute mandatory arbitration agreements that have become increasingly common in long-term care facility admissions contracts. By signing these agreements, residents and their families give up their right to hold a facility accountable in court for negligent or abusive care that results in serious injury or death. Instead, any dispute that arises between residents and the facilities are automatically subject to mandatory arbitration. Such arbitration agreements require that all parts of the legal process remain confidential.  As a result, long-term care facilities are often not held publicly accountable for their substandard care.

 

“Our goal is to protect residents and families from being forced to make a critical decision about their legal rights during the stressful and emotional process of admission into a nursing facility, at which time families are focused solely on finding their loved one the best possible care and not on the legal technicalities of arbitration,” said Senator Kohl. “I hope to see this bill passed by the full Senate, so that we can protect the right of those who receive inadequate care to hold poor-performing facilities accountable in court.”

 

“We are one step closer to giving nursing home residents and their families the peace of mind that their constitutional rights are protected,” Martinez said. “This effort to restore the original intent of arbitration laws will ensure that families will not have to choose between quality care and forgoing their rights within the judicial system. We must ensure that this vulnerable population is taken care of and preserve all of their rights in the event of abuse or neglect.”

 

In recent years, many nursing home residents and their families have challenged arbitration agreements in an attempt to bring their claims for negligent and abusive care to court. Unfortunately, the courts are unable to protect the rights of residents who signed arbitration agreements under duress, lacking the mental or physical capacity to understand the consequences and in other unconscionable circumstances. 

 

The use of these agreements in the long-term care arena is particularly problematic because of the unique circumstances that surround admission to a facility. Often these facilities are a last resort for families and residents, and many times these decisions are made under desperate, and sometimes emergency, circumstances. Individuals and families have little or no opportunity to fully consider and understand the consequences of an arbitration provision buried within and 40 or 50 page admissions document that they are asked to sign during the admissions process. In many cases, individuals are unaware that they had signed an arbitration agreement.  

 

The Fairness in Nursing Home Arbitration Act reflects the Federal Arbitration Act’s original intent by requiring that agreements to arbitrate nursing home disputes be made after the dispute has arisen. The Act does not prohibit arbitration in nursing home disputes, but it will prevent a nursing home corporation with greater bargaining power from forcing residents and their families into arbitration through a non-negotiable contract entered into prior to the dispute. It will ensure that arbitration is a voluntary and not coerced forum to resolve disputes. 

 

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