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.

Posted at 9:47 AM, May 23, 2008 in Arbitration | Legislation | Liability Immunity | Mandatory Arbitration | Pro-Civil Justice Reforms | Permalink | Comments (2) | TrackBack (0)