Nursing Home Arbitration Bill

With a new administration ready to be sworn in and some significant changes in Congress there is real optimism that the S. Bill 2838, Fairness in Nursing Home Arbitration Act may actually pass this year. The Fairness in Nursing Home Arbitration Act provides that a pre-dispute arbitration agreement between a long-term care facility and a resident (or anyone acting on the resident’s behalf) shall not be valid or specifically enforceable. In the last Congressional Session the bill came out of committee unchanged and on Oct 1, 2008, it was placed on Senate Legislative Calendar under General Orders. Calendar No. 1109. If this act passes, nursing home abuse cases will be in the hands of our court system with trained judges and juries to make decisions- not hand -picked arbitrators many of whom work for the nursing home industry.

The steps nursing homes take to avoid liability when faced with claims of nursing home abuse and to force, at times, incompetent residents to arbitrate claims is unconscionable. In my practice, I have seen nursing homes forge the signature of an incompetent resident; have family members with no legal authority sign arbitration agreements for their loved ones without really knowing what they were signing; seen nursing homes try to enforce them against the resident when the home has failed to provide anything close to reasonable care; had families who could not pursue claims because the arbitration industry fees are outrageous while they are paying taxes to keep our courthouses open; observed the industry snub its residents by telling them they have ‘wasting’ insurance policies where the money goes to pay their defense counsel leaving nothing for the injured; and try to circumvent liability by setting up multiple corporations to avoid to avoid compensating residents they are obligated to care for. This is particularly disturbing when one considers that the purpose of nursing homes is to care and protect the elderly. Nursing home residents are vulnerable and unprotected despite Federal Regulations. As much as we wish it did not happen nursing home abuse occurs and our courts are set up to resolve those issues. The decisions should not be in the hands of selected arbitrators with no safeguards of appeal or review. The nursing home industry should not be allowed to deprive consumers of jury trials for injuries inflicted upon the most vulnerable of our society.

Keep a lookout for news about this bill and when it comes back up, contact your Senators and Congressmen and urge them to vote for it.