Personal Injury

U.S. Senate debates arbitration

A joint meeting of the U.S. Senate Committee on Judiciary, Subcommittee on Antitrust, Competition and Consumer Rights and U.S. Senate Aging Committee was held this morning to discuss S. 2838, The Fairness in Nursing Home Arbitration Act, sponsored by Sen. Herb Kohl, D-Wis., chairman of the Senate Aging Committee, and Sen. Mel Martinez, R-Fla. The bill’s sponsors argued that more nursing home facilities are requiring patients and their families to sign mandatory arbitration agreements, signing away their right to sue in the event of abuse or neglect, which they said is unfair.

“We believe the vast majority of nursing homes are doing a very good job and working hard to deliver quality care,” Sen. Kohl told the committee. “But we must protect the rights of those who receive inadequate care to hold the facilities accountable.” He said the bill would “send a strong message to underperforming facilities that harmful care is not acceptable.”

Sen. Martinez said the practice of nursing homes requiring residents to sign mandatory arbitration agreements is an overreach of the original purpose of the 1925 Federal Arbitration Act, which he says provides for voluntary arbitration agreements. Requiring a mandatory arbitration agreement as a condition of admittance to a facility is taking advantage of the nation’s most vulnerable citizens, he said.

“I was a practicing attorney for many years, and I believe alternative dispute resolution is a legitimate way to resolve disputes,” Sen. Martinez said, “but it should apply to … people in similar positions when entering an agreement to arbitrate. Prospective nursing home residents – our nation’s most vulnerable population – should not be forced to sign an arbitration agreement as a condition of being admitted to a nursing home.”

Senators Martinez and Kohl pointed out that when patients and their families are at the point of entering a nursing home facility, the patient often is in need of immediate care. Sometimes there are no alternative facilities in close proximity to the patient’s home. Families feel they must sign the agreement in order to ensure their loved one gets needed care right away. Most, they say, do not realize they are relinquishing their rights to go to court.

Sen. Orrin Hatch, R-Utah, spoke in opposition of the bill. He expressed concern that removing arbitration arrangements from nursing homes will cause a rise in long term liability costs and ultimately result in a worse quality of care for the nation’s elderly. He said he believes the proposed Senate bill will result in small business owners going out of business and less well-off seniors unable to afford resulting higher prices.

“I am deeply concerned about nursing home abuse,” Sen. Hatch said. “The abuse of a patient’s trust cannot be tolerated.” However, he said, he feels the problems are being addressed by the nursing home industry.

Sen. Martinez disagrees. Arbitration, he says, “remov[es] the one incentive the industry has to self-regulate and police itself and provide a level of care that I believe is what all of us would like to see for our most vulnerable residents.”

A webcast of the meeting is available at the web site for the United States Senate Special Committee on Aging.