U.S. Senator Mel Martinez has introduced legislation to protect dispute resolution options for residents of nursing homes. The measure by the Florida Republican is in response to the increasing practice of nursing home facilities requiring patients to agree to arbitration as the sole vehicle for dispute resolution prior to admittance to a facility. When introducing the bill last month, Senator Martinez said:
When a family makes the difficult decision to help a loved one enter a nursing home, among the primary considerations is quality care. Forcing a family to choose between quality care and forgoing their rights within the judicial system is unfair and beyond the scope of the intent of arbitration laws. This effort restores the original intent and tells families that they don’t have to sign away their rights in order to access quality care.
Joining with Senator Martinez in pushing this needed legislation was Senator Hub Kohl, a Democrat from Wisconsin, who observed:
Nursing home residents, one of our nation’s most vulnerable populations, must not lose their right to hold nursing homes accountable in the event of abuse or neglect. This bipartisan legislation protects senior long-term care residents who unwittingly sign away their constitutional right to have their case heard by an impartial judge or jury. I am proud to work with Senator Martinez in introducing this bill, and urge my colleagues in the Senate to pass it without delay.
As we have repeatedly said, Congress enacted the Federal Arbitration Act in 1925 with the sole goal of allowing parties an alternative forum to efficiently resolve business disputes. Consumer transactions were clearly never intended to be included in the FAA. Over time, however, arbitration was expanded by the U.S. Supreme Court to include non-business disputes. Nobody would have ever dreamed a dispute involving a resident in a nursing home would fall under the FAA. But, nursing homes are now requiring patients to sign mandatory pre-dispute arbitration clauses upon admittance to their facility. Clearly, this trend is an unwarranted intrusion into a vulnerable population’s right to access the civil justice system for redress of their potential claims.
The Fairness in Nursing Home Arbitration Act reflects the FAA’s original intent by requiring that agreements to arbitrate nursing home disputes be made after the dispute has arisen. While the Act doesn’t prohibit arbitration in nursing home disputes, 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 a coerced forum to resolve disputes. While I would prefer to see arbitration banned by Congress in all consumer disputes, including those involving nursing homes, this legislation is a step in the right direction. Hopefully, it will pass.
Source: Washington Post
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