WASHINGTON – Today U.S. Senator Herb Kohl (D-WI) chaired a joint 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 unwittingly 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.
In April, Senator Kohl joined Senator Mel Martinez (R-FL) in introducing S. 2838, the Fairness in Nursing Home Arbitration Act of 2008. The legislation is a narrowly targeted measure that would protect nursing home residents from losing the right to hold long-term care facilities accountable in court for negligent and abusive care.
“Typically, admissions agreements are presented on a take-it-or-leave-it basis. Residents have few choices because they require immediate admission or because there are no other facilities in the area,” said Senator Kohl. “As a result, whether or not they understand the arbitration provision, they often feel compelled to sign in order to ensure that their loved one will be admitted.”
“Every American deserves equal protection under the law and the right to seek legal recourse when they're harmed by others,” said Senator Martinez. “Prospective nursing home residents – one of our nation's most vulnerable populations – should not be forced to decide the forum for resolving their potential claims as a condition for admittance to a nursing home.”
Over the past five years there have been more than 100 Westlaw reported court cases where residents 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 joint panel first heard from David Kurth of Burlington, Wisconsin. Kurth testified about his family’s experience with the tragic passing of his father in a nursing home and the facility’s attempt to invalidate an arbitration agreement signed by his mother during the admissions process. Alison Hirschel, President of the NCCNHR: The National Consumer Voice for Quality Long-Term Care, and Kenneth Connor, an attorney with Wilkes & McHugh, spoke to the need for legislation and offered support for the bill. Kelley Rice-Schild testified on behalf of the American Health Care Association, and talked about the bill from her perspective as the Executive Director of a long-term care facility in Florida. Finally, Stephen Ware, a Professor of Law at the University of Kansas, discussed arbitration agreements and the arbitration process.
Kohl is Chairman of both the Judiciary Subcommittee on Antitrust, Competition and Consumer Rights and the Special Committee on Aging.
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