In January I wrote a blog on S. Bill 2838, Fairness in Nursing Home Arbitration Act. This bill never became law. The last action taken by the Senate on the bill was in September when it was reported favorably out of committee and then on October 1, 2008, it was placed on the Senate Legislative Calendar under General Orders. Calendar No. 1109. This bill has now been proposed in previous Sessions of Congress last two years. At the end of each session all proposed bills and resolutions that haven’t passed are cleared from the books. The bill was never debated by the Senate. This means the bill will have to be reintroduced under a new number in the next session.
The bill was sponsored by Sen. Mel Martinez [R-FL] and co-sponsored by Sen. Patrick Leahy [D-VT], Sen. Russell Feingold [D-WI], Sen. Richard Durbin [D-IL] and Sen. Herbert Kohl [D-WI]. I would urge all you to contact your Senators and Congressmen before the next session and urge them to get this bill reintroduced and passed.
Nursing home abuse continues and arbitration is not the way to handle these cases. When loved ones are put in nursing home today the facility often presents a series of documents to be signed in order for the family member to be admitted. Often stuck in the middle of all those is an arbitration agreement. I have never seen one drafted that is designed to favor or even equally treat the resident. Those agreements are signed by residents with dementia who do not have the capacity to enter into any other kind of contract. Or they may be signed by a family member who does not have a power of attorney or court appointment authorizing them to enter into contracts on their behalf. The nursing home does not care who signs them- it is just part of a process. That process is not in the best interest of the resident. I have seen forged signatures on nursing home arbitration agreements and had one facility admit it forged the signature.
One way to protect against this happening is for everyone to have a power of attorney that prohibits the attorney in fact from entering into any contract that has an arbitration clause or agreement in it. Here is an example of the clause that should be in every power of attorney:
“NO POWER TO AGREE TO BINDING ARBITRATION. Although I have given my attorney-in-fact this general and durable power of attorney, I specifically withhold from my attorney-in-fact the power to agree or consent to binding arbitration, or to agree to any other process that would preclude the right to have a jury decide any issue in controversy concerning my person or my property; this does not, however, preclude non-binding alternative dispute resolution processes such as mediation. “
There are things we can all do to protect our loved ones in nursing home. Let’s start a letter writing campaign now to get the Fairness in Nursing Home Arbitration Act reintroduced and passed.
Civil litigation attorney Billy Cunningham practice concentrates on personal injury, wrongful death, nursing home abuse, business litigation, environmental law and insurance matters. He is licensed to practice in the state and federal courts of Alabama and Mississippi, as well as in the U.S. Court of Military Appeals, U.S. Court of Appeals for the Fifth Circuit and the Supreme Court of the United States.