GOP, Democratic Leaders of Senate Aging Committee
Offer Bill to Hold Nursing Homes Accountable
Bill requires that agreements to arbitrate nursing
home disputes be made after a dispute has arisen, not in application for
care
March
4, 2009 - Senator Mel Martinez (R-FL) and U.S. Senator Herb Kohl (D-WI)
have reintroduced the Fairness in Nursing Home Arbitration Act to
protect nursing home residents from losing the right to hold long-term
care facilities accountable in court for negligent or abusive care. A
version of the bill was approved by the Senate Judiciary Committee
during the last Congress.
We are one step closer to giving nursing home
residents and their families the peace of mind that their constitutional
rights are protected, Republican Martinez said.
This effort to restore the original intent of
arbitration laws will ensure that families will not have to choose
between quality care and forgoing their rights within the judicial
system. We must ensure that this vulnerable population is taken care of
and preserve all of their rights in the event of abuse or neglect.
This legislation is a narrowly targeted measure
that protects nursing home residents, one of our nations most
vulnerable populations, from losing the right to hold nursing homes
accountable in court for negligent or abusive care, said Senator Kohl.
Our bill will ensure that families have legal
options when resolving disputes that can have far reaching
consequences.
Last June, Senator Kohl chaired a joint Judiciary
Committee-Aging Committee hearing on pre-dispute mandatory arbitration
agreements that have become increasingly common in long-term care
facility admissions contracts.
By signing these agreements, residents and their
families give up their right to hold a facility accountable in court for
negligent or abusive care that results in serious injury or death.
Instead, any dispute that arises between residents and the facilities is
automatically subject to mandatory arbitration.
In recent years, many nursing home residents and
their families have challenged arbitration agreements in an attempt to
bring their claims for negligent or abusive care to court.
Unfortunately, the courts are unable to protect the rights of residents,
even when they signed arbitration agreements under duress, lacking the
mental or physical capacity to understand the consequences and in other
unconscionable circumstances, according to Kohl.
The use of these agreements in the long-term care
arena is particularly problematic because of the unique circumstances
that surround admission to a facility.
Often these facilities are a last resort for
families and residents, and many times these decisions are made under
desperate, and sometimes emergency, circumstances. Individuals and
families have little or no opportunity to fully consider and understand
the consequences of an arbitration provision buried within a 40 or 50
page admissions document that they are asked to sign during the
admissions process. In many cases, individuals are unaware that they
had signed an arbitration agreement.
The Fairness in Nursing Home Arbitration Act simply
requires that agreements to arbitrate nursing home disputes be made
after a dispute has arisen. The Act does not prohibit arbitration in
nursing home disputes, but it will prevent a nursing home corporation
with greater bargaining power from forcing residents and their families
into arbitration through a contract entered into prior to a dispute.
It will ensure that arbitration remains a voluntary
forum to resolve disputes. The legislation has the support of more than
30 national consumer advocacy organizations, such as AARP, the National
Consumer Law Center, and the Consumers Union, as well as over 80 state
organizations.
Senator Martinez is the Ranking Member of the
Special Committee on Aging. Senator Kohl is chairman of both the
Judiciary Subcommittee on Antitrust, Competition and Consumer Rights and
the Special Committee on Aging.
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Keep up with the latest news for senior citizens, baby
boomers
March
4, 2009 - Senator Mel Martinez (R-FL) and U.S. Senator Herb Kohl (D-WI)
have reintroduced the Fairness in Nursing Home Arbitration Act to
protect nursing home residents from losing the right to hold long-term
care facilities accountable in court for negligent or abusive care. A
version of the bill was approved by the Senate Judiciary Committee
during the last Congress. 
