Senior Citizens Move Closer to Right to Hold Nursing
Homes Accountable for Neglect, Abuse
Senate Judiciary Committee passes Fairness in Nursing
Home Arbitration Act of 2008
Sept.
12, 2008 A bill to protect nursing home residents from losing the
right to hold long-term care facilities accountable in court for
negligent and abusive care was approved yesterday by the Senate
Judiciary Committee. The bi-partisan bill - the Fairness in Nursing Home
Arbitration Act of 2008 - is sponsored by Sen. Herb Kohl (D-WI) and Sen.
Mel Martinez (R-FL).
Sen. Kohl, chairman of both the Judiciary
Subcommittee on Antitrust, Competition and Consumer Rights and the
Special Committee on Aging, chaired a joint hearing last June 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 are automatically subject to mandatory arbitration.
Such arbitration agreements require that all parts of the legal process
remain confidential. As a result, long-term care facilities are often
not held publicly accountable for their substandard care.
Our goal is to protect residents and families from
being forced to make a critical decision about their legal rights during
the stressful and emotional process of admission into a nursing
facility, at which time families are focused solely on finding their
loved one the best possible care and not on the legal technicalities of
arbitration, said Senator Kohl.
I hope to see this bill passed by the full Senate,
so that we can protect the right of those who receive inadequate care to
hold poor-performing facilities accountable in court.
We are one step closer to giving nursing home
residents and their families the peace of mind that their constitutional
rights are protected, 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.
In recent years, many nursing home residents and
their families have challenged arbitration agreements in an attempt to
bring their claims for negligent and abusive care to court.
Unfortunately, the courts are unable to protect the rights of residents
who signed arbitration agreements under duress, lacking the mental or
physical capacity to understand the consequences and in other
unconscionable circumstances.
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 and 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
reflects the Federal Arbitration Acts original intent by requiring that
agreements to arbitrate nursing home disputes be made after the 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 non-negotiable contract entered into prior to the
dispute. It will ensure that arbitration is a voluntary and not coerced
forum to resolve disputes.
Keep up with the latest news for senior citizens, baby
boomers
Sept.
12, 2008 A bill to protect nursing home residents from losing the
right to hold long-term care facilities accountable in court for
negligent and abusive care was approved yesterday by the Senate
Judiciary Committee. The bi-partisan bill - the Fairness in Nursing Home
Arbitration Act of 2008 - is sponsored by Sen. Herb Kohl (D-WI) and Sen.
Mel Martinez (R-FL).