Last January I wrote a blog on the Fairness in Nursing Home Arbitration Act (then Senate Bill . 2838 and now Senate Bill 512) The last report from Congress is that the bill was referred to committee in July. I said then that we all need to keep an eye out for the bill and write our Senators. With Congress in the midst of debating and considering the health package now is a good time to ask them to pass this bill to protect our elderly.
The bill would amend the Federal Arbitration Act (FAA) to invalidate mandatory binding arbitration contracts that are unfair to the elderly because they take away their right to be heard in a court of law and increase their vulnerability to neglect and abuse in a care facility.
The bill does not prohibit arbitration. Rather, it would ensure that the resident or his or her representative could voluntarily choose arbitration after a dispute arose. If arbitration is truly fair and efficient, as some have argued, then both sides should be able to voluntarily choose arbitration after – not before – a dispute arises.
I have seen nursing home corporations insert forced arbitration clauses in their contracts and have them signed by residents who have dementia, by family members who are told they have to sign the whole agreement or their loved one will not be admitted and by the nursing homes own employees who forge signatures. Why do the nursing homes want arbitration so badly? Because it means they will never be held publicly accountable for their actions, no matter how egregious their conduct. Then when a decision is made by most likely a hand-picked arbitrator, the patient is denied the opportunity for judicial review.
On the other hand, if allowed to utilize the court system, society benefits from an open legal process that exposes nursing homne neglect and abuse. One of the most important benefits of civil lawsuits is the discovery process, which often discloses shoddy corporate practices, such as staff reductions, that lead to neglect. Forced arbitration, on the other hand, restricts residents’ ability to get information and keeps abusive business practices hidden.
So again I urge you to contact your representatives in Congress and let’s get this bill passed!
