Fairness in Nursing Home Arbitration Act

American Rights at Work recently launched a campaign to highlight big business's double-speak about arbitration. (h/t to AFL-CIO.) The campaign points out Corporate America's differing views on arbitration in two bills: the Employee Free Choice Act (EFCA) and the Arbitration Fairness Act (AFA).

March 5, 2009

United States Senate

Washington, DC 20510

Dear Senator:

Binding mandatory arbitration clauses are forcing the elderly and those with disabilities and their families to waive their constitutional right to seek redress in the courts when a nursing home resident suffers harm. These clauses are typically buried in contracts signed by families during one of the most stressful events in their lives – entrusting the care of a vulnerable loved one to strangers – and the clauses effectively compel family members to consent that they will waive the legal rights of a loved one if she or he is injured or dies from neglect or physical abuse while in the facility. The contracts are presented on a take-it-or-leave-it basis, and leave families in the impossible situation of having to sign a contract or forgo nursing home care altogether, a decision that most families are not in the position to make. The undersigned organizations urge you to support the Fairness in Nursing Home Arbitration Act of 2009 (S. 512/H.R. 1237), which would invalidate pre-dispute mandatory arbitration provisions in nursing home, assisted living, and other long-term care facility contracts.

Statement of David Arkush, Director, Public Citizen’s Congress Watch Division

Choosing a nursing home or assisted living facility for a loved one is one of the most important and difficult decisions that a family faces. It requires weighing a complicated set of factors such as quality of care, cost and location. Few people faced with this decision pore over the fine print of admissions contracts or worry about whether they are sacrificing important legal rights – and they shouldn’t have to.

The Fairness in Nursing Home Arbitration Act bans pre-dispute mandatory binding arbitration clauses from nursing home contracts. Opponents of the bill argue that pre-dispute mandatory binding arbitration should continue as a cost-saving measure. In reality, mandatory arbitration does not save costs, but it does enable ill-practicing nursing homes to escape accountability and public scrutiny while cutting off the rights of our nation's elderly. Why should nursing home residents have fewer rights than everyone else?

by David Arkush and Christine Hines

Cross-posted from The Watchdog Blog

Yesterday the Senate Judiciary Committee followed its counterpart in the House and approved an important arbitration bill to protect residents in nursing homes and assisted living facilities, the Fairness in Nursing Home Arbitration Act, S. 2838. The legislation, which a House committee approved in July, will make it easier to hold these facilities accountable for negligent or reckless acts that harm their residents. It prevents nursing homes from forcing residents to agree to arbitration before a dispute arises, allowing residents to turn to the courts in the event their nursing homes cause them serious injuries or death. Without this protection, nursing homes can force residents to take disputes to private arbitrators chosen by the nursing home itself. Guess who wins cases there?