Kia Franklin

Congress Introduces Bill to Protect Nursing Home Patients

File this one away in the "good stuff" folder. What better place to start with eliminating pre-dispute, binding mandatory arbitration agreements, than with nursing home agreements? It is just patently unfair to force elderly people and their families to sign away their right to jury trial or else have to go off on a wild goose hunt for another facility that does not require bma, appears to be safe, is comfortable to the nursing home patient, and is not onerously far away from family visitors who plan to travel to the facility.

Congresswoman Linda T. Sanchez (D-California) has introduced legislation to protect nursing home residents from being forced into arbitration if they're harmed by the facility. Here's a link to Rep. Sanchez's full statement, but I just wanted to point out a few points she made.

First, she describes the legislation, what it does and does not do:

"This legislation is designed to make unenforceable all pre dispute, mandatory binding arbitration clauses in contracts between long term care facilities and their residents. Let me be clear: I am supportive of the principles of arbitration, so this legislation will not prohibit arbitration. Instead, it will simply ensure that residents have the choice whether to arbitrate a dispute after it has arisen."

Next, she explains the need for this legislation:

“The Subcommittee on Commercial and Administrative Law, which I chair, has held three hearings this term on issues related to the Federal Arbitration Act. During these hearings, witnesses testified that many businesses utilize arbitration agreements to the disadvantage of consumers by limiting constitutional rights, imposing unreasonable costs, and creating a system in which consumers are likely to lose even when they file a valid claim... A witness at the Subcommittee’s October 25, 2007 hearing on H.R. 3010, the Arbitration Fairness Act of 2007, testified that the “current system of binding mandatory arbitration employed by nursing homes creates a playing field that is tilted in favor of nursing homes and against frail, vulnerable residents who suffer terribly at the hands of their caregivers. Sadly these residents are, all too often, the victims of abuse by their caregivers. They should not be further abused by an arbitration system that dispenses anything but justice.”

Next, she explains the goal of the legislation, with a personal touch:

"Residents and their families will no longer have to worry about losing their right to a jury trial when they are going through the emotional and traumatic process of searching for long-term care facilities and then choosing the perfect one. I understand the emotional toll and the sense of vulnerability when moving a loved one and his belongings into the care of strangers at a nursing home. My father was recently placed into a nursing home, and one of the last things I wanted to worry about was whether he was forgoing his legal rights when he entered it. Instead, I wanted to focus solely on the quality and range of services the facility would provide him. This legislation will allow families and residents to retain their legal rights while they look for that perfect long-term care facility."

Good for Rep. Sanchez and the other fine folks in Congress and in the Senate for introducing this legislation. The other sponsors of the House bill are Representatives Ileana Ros-Lehtinen, John Conyers, Hank Johnson, Dennis Kucinich, and William Delahunt. There's a companion Senate bill as well, introduced by Senators Herb Kohl (D-WI) and Mel Martinez (R-FL).

Unfairness in the arbitration process itself is good enough reason to eliminate these agreements. But then tack onto that the severe deficiencies in the way nursing homes are investigated. So as the system currently operates, you've got a poorly regulated industry that is then insulating itself from the consequences of the safety violations it has been getting away with on the front end. Where's the accountability, if it's not in our courts and not in our government agencies? In an industry in which you can't just boycott them and in which lives are at stake, many nursing home residents and their families have their backs against the wall. The situation surpasses unfair--it feels very exploitative.

Kia Franklin: Author Bio | Other Posts
Posted at 9:47 AM, May 23, 2008 in Arbitration | Legislation | Liability Immunity | Mandatory Arbitration | Pro-Civil Justice Reforms
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Kia: Nursing home residents don't even know where they are. One notes that of all their problems, the only one you care about is the one that generates jobs for trial lawyers. This post is unseemly, offensive, and self-serving.

Posted by: Supremacy Claus | May 23, 2008 6:45 PM

Any good thing can and will be abused. American corporations, large & small, have seized on the FAA as a way to abnegate responsibility, quality service, and jury-based legal action in order to improve profitability - and only improve profitability. I would urge any corporation - large or small - which thinks to use the FAA to consider these recommendations: a) make arbitration swift & less costly for both the defending corporation and plaintiff; b) cover arbitration costs for all under- privileged plaintiffs; c)define carefully and do not prohibit class actions where recoveries are small & uniform; d)allow for pre-arbitration dispute resolution; e) pay all arbitration costs if any award is made, regardless of plaintiff economics; f)allow for 15-day rescission after signing; g)clearly disclose; h)allow a 3-arbitrator process (each party choses one; those two chose a 3rd); & finally i)choose arbitrators who are expert in the field and are legally knowledgeable. In this way, arbitration will be fair. 15% to 25% of jurors do not have high school diplomas, depending upon city/state; 84% think U.S. corporations are self serving, lying and wicked. Is this a projection, as Freud would say? or a true reflection of both population and corporation? Likely both. Doing away with arbitration is unwinding 85 years of wisdom intended to prevent trial lawyers from even further ruling & running America. Most trial lawyers take 40% of all awards; Medicaid/Medicare are paid next; the "victims" receive the stick's short end. This is always true. Settle out before arbitration and the plaintiff always wins.

Posted by: Eugene Rosov | May 24, 2008 2:40 PM

Congress has introduced the "Nursing Home Transparency and Quality of Care Improvement Act of 2008." The bill increases the transparency of nursing home ownership, ensures that residents and their families have information about the quality of care at these facilities, and strengthens enforcement of nursing home compliance with quality of care standards.

The Nursing Home Act enables nursing home residents and government regulators to better know who actually owns the nursing home and who controls the decision-making that impacts the quality of care provided. In addition, the bill improves the reporting of information on staffing levels and direct patient care expenditures.

Posted by: Gregory D. Pawelski | November 29, 2008 2:11 AM

Congress’s Feres "to harm" Ignored.

"IV. Recommendations. G. The Feres Doctrine” [1] “should not be applied for military personnel who are harmed by inappropriate human experimentation when informed consent has not been given." U.S. Senate December 8, 1994 REPORT 103-97 "Is Military Research Hazardous to Veterans' Health? Lessons Spanning Half a Century."[2]

In 2010, despite the efforts of some, by their inaction the U.S. Congress has approved the Report’s: "Introduction" "During the last 50 years, hundreds of thousands of military personnel have been involved in human experimentation and other intentional exposures conducted by the Department of Defense (DOD), often without a service member's knowledge or consent." and "...most Americans would agree that the use of soldiers as unwitting guinea pigs in experiments that were designed to harm them, at least temporarily, is not ethical." Thereby, to-date covered up and continuing are these Feres [1] “to harm” experiments no help as documented by the U.S. Senate Report [2].

Please hold your members in the U.S. Congress responsible for your loved ones!


[1] U.S. Supreme Court, Feres v. United States, 340 U.S. 135, 146 (1950).

[2] U.S. Senate December 8, 1994 REPORT 103-97 "Is Military Research Hazardous to Veterans' Health? Lessons Spanning Half a Century." Hearings Before the U.S. Senate Committee on Veterans' Affairs, 103rd Congress 2nd Session. With NOTES 1 to 170. Committee Print - S. Print. 103-97. See Gulf War Veterans website Hyperlink:

Posted by: David Marshall | February 21, 2010 9:20 AM

it might help if the nursinghomes didnt have 3 days notice before state inspections

Posted by: Anonymous | May 18, 2010 2:12 PM

No witnesses and not in the record.

In 2011 the needed for treatment experimentation evidence is still not in a subject’s medical record with the names of all in-service witnesses lost. The U.S. Government’s then 50 year known, “experiments that were designed to harm” [6] were a dereliction of duty in direct disobedience of the Department of Defense (DOD) Secretary's 26 February 1953 order.[2] During the U. S. General Accounting Office (GAO) [5] and U.S. Senate’s [6] 1994 reported past fifty years, hundreds of thousands of the "to harm" service records were destroyed in a 1973 National Personnel Records Center fire. Congress’s 1974 Privacy Act censored experiment verifying witnesses from any surviving records! The Senate’s 1994 Report notes past and present, "III. Findings and conclusions", "K. DOD and DVA have repeatedly failed to provide information and medical followup to those who participate in military research..." and "N. Participation in military research is rarely included in military medical records, making it impossible to support a veteran’s claim for service-connected disabilities from military research."
To-date the U.S. Congress has rejected the U.S. Senate 1994 Report’s, “The Feres Doctrine should not be applied for military personnel who are harmed by inappropriate human experimentation when informed consent has not been given.”[6] The U.S. Supreme Court’s 1987 STANLEY is a “to harm” DOD 1958 drug experiment "injuries that `arise out of or are in the course of activity incident to service.'".[3] FIFTY (50) TIMES cited is the U.S. Supreme Court’s 1950 FERES “incident to service” death decision due to a 1947 Army barracks fire.[1] The STANLEY case is one of the U.S. Senate’s Dec. 1994 “During the last 50 years, hundreds of thousands of military personnel” were subjected to “experiments that were designed to harm”, e.g., their reported biological and chemical agents, radiation exposure, hallucinogenic and investigational drugs, experimental vaccines and behavior modification projects.[6] Underlying the U.S. Senate’s Report is the GAO Sept. 1994 U.S. House Report, “Human Experimentation Overview on Co1d War Era Programs”![5]

Convicted rapists and murderers are given protection from human experiments by the U.S. Constitution’s 1791 Bill of Rights, Amendment Eight. In 1992 the U.S. Senate signed and ratified the United Nation, International Covenant on Civil and Political Rights (ICCPR).[4] Its 1994 Index, “... Article 7 - Freedom from Torture, or Cruel, Inhuman or Degrading Treatment or Punishment.”notes that, “Written policy and practice prohibit the use of” [prison] “inmates for medical.....experiments.”![4] Nineteen (19) times cited are the U.S. Constitution plus its Eighth Amendment’s no cruel and unusual punishment.[4]

The "Veterans Right to Know Act" to establish the Veterans' Right to Know Commission was proposed in the 2005 and H.R. 4259 [109th] 2006 Congress.[7] A veteran's right to get the “designed to harm” [6] needed for treatment, and experiment identifying, evidence never became law. This is consistent with the 1957, “....The intelligence community believed that it was necessary "to conceal these activities from the American public in general," because public knowledge of the "unethical and illicit activities would have serious repercussions in political and diplomatic circles and would be detrimental to the accomplishment of its mission." Id., at 394 (quoting CIA Inspector General's Survey of the Technical Services Division, p. 217 (1957)).”; See [Footnote 4] of Section IV, 1987 STANLEY.[3]

It is now a from 1944, 67 years of U.S. Congressional talk and no correction. Do not the U.S. Senate’s stated DOD “EXPERIMENTS THAT WERE DESIGNED TO HARM” [6] continue? Overlooked by many in Congress is their Oath of Office to defend the U.S. Constitution, our national “Pledge of Allegiance” “with liberty and justice for all" and the U.S. Supreme Court’s ignored own, carved in stone over its entrance, “EQUAL JUSTICE UNDER LAW”! As in the GAO and U.S. Senate’s reported past, these “incident to service” activities are conducted under the ongoing secrecy cover of our ‘national interests’, e.g., WWII, Cold War, Korea, Vietnam, Gulf War, Iraq and Afghanistan. Shouldn’t U.S. Service Personnel and Veterans get back those Constitutional Rights that they die for and convicted rapists and murderers keep? Please hold your members in the U.S. Congress accountable!


[1] 1950 - Feres v. United States, 340 U.S. 135, 146 (1950).

[2] 1953 - DOD Secretary's 26 February 1953 NO non-consensual, human experiment’s Memo pages 343-345. George J. Annas and Michael A. Grodin, "The Nazi Doctors and the Nuremberg Code; Human Rights in Human Experimentation” (New York: Oxford University Press, 1992).

[3] 1987 - U.S. SUPREME COURT, JUNE 25, 1987, U.S. V. STANLEY , 107 S. CT.. 3054 (VOLUME 483 U.S., SECTION 669, PAGES 699 TO 710).

[4] 1994 - U.S. State Dept., "U.S. Report under the International Covenant on Civil and Political Rights July 1994, Article 7 - Freedom from Torture, or Cruel, Inhuman or Degrading Treatment or Punishment.” See “Index of “1994 International Covenant on Civil and Political Rights"

[5] 1994 - [PDF] T-NSIAD-94-266 GAO September 28, 1994 “Human Experimentation Overview on Co1d War Era Programs”

[6] 1994 - December 8, 1994 REPORT 103-97 "Is Military Research Hazardous to Veterans' Health? Lessons Spanning Half a Century." Hearings Before the U.S. Senate Committee on Veterans' Affairs, 103rd Congress 2nd Session.

[7] 2005 & 2006 - "Veterans Right to Know Act" to establish the Veterans' Right to Know Commission was proposed in the 2005 and H.R. 4259 [109th] 2006 Congress. H. R. 4259.

Posted by: David Marshall | January 22, 2011 3:54 PM