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Fairness in Nursing Home Arbitration Act

Corporate Double-Speak on Union, Consumer Arbitrations

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American Rights at Work recently launched a campaign to highlight big business’s double-speak about arbitration. (h/t to AFL-CIO.) The campaign points out Corporate America’s differing views on arbitration in two bills: the Employee Free Choice Act (EFCA) and the Arbitration Fairness Act (AFA). In short, Big Business opposes the provision of EFCA that requires them to arbitrate disputes over contract negotiations (union arbitration). It also regularly extols the virtues of forcing consumers and employees to go to arbitration when they are hurt, swindled or discriminated against (forced arbitration), and opposes the AFA because it would end this practice. Stories about this arbitration hypocrisy popped up on blogs like Firedoglake and Huffington Post.

We actually agree with Big Business about one thing: forced arbitration and union arbitration are not the same. This becomes clear when you look at the two processes, and the differences illustrate why Corporate America favors one (forced arbitration) and opposes the other (union arbitration):

1. Who controls the process — In forced arbitration, the company writes the contract, makes the rules, and picks the arbitrator. In union arbitration, the Federal Mediation and Conciliation Service sets up an arbitration board to ensure that the process and the arbitrators are neutral.

2. The parties involved — Companies love to take individuals with no bargaining power to arbitration; they hate to arbitrate against larger parties who can bargain collectively. They also hate it when consumers or employees join together — either in class action lawsuits or class arbitration.

3. Timing — Arbitration under EFCA would happen before there’s a contract, to facilitate the bargaining process. Unfortunately for consumers and non-union employees, they never get the chance to bargain: forced arbitration is imposed on them when they sign up for goods and services, when they are least able to make an informed decision about whether it’s in their best interest.

Last week the U.S. Chamber of Commerce responded to the arbitration-related pressure by clarifying its position(s). Their letter to lawmakers misrepresents both the nature of forced arbitration (they claim it is only used to resolve only "factual disputes") and the practice’s history (far from being a "long-standing" practice, companies like the credit card industry have been using it against customers for about ten years).

All you really need to know to understand the Chamber’s position is this statement by Rep. Linda Sanchez:

“I do find it ironic that the Chamber supports arbitration in David v. Goliath cases: When it’s one individual against a large, savvy and well-heeled corporation. But when it is a group of workers banding together to achieve the power of numbers, the Chamber admonishes the idea.”

Coalition Support Letter for Nursing Home Arbitration Act of 2009

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March 5, 2009

 

United States Senate

Washington, DC 20510

 

Dear Senator:

 

Binding mandatory arbitration clauses are forcing the elderly and those with disabilities and their families to waive their constitutional right to seek redress in the courts when a nursing home resident suffers harm. These clauses are typically buried in contracts signed by families during one of the most stressful events in their lives – entrusting the care of a vulnerable loved one to strangers – and the clauses effectively compel family members to consent that they will waive the legal rights of a loved one if she or he is injured or dies from neglect or physical abuse while in the facility. The contracts are presented on a take-it-or-leave-it basis, and leave families in the impossible situation of having to sign a contract or forgo nursing home care altogether, a decision that most families are not in the position to make. The undersigned organizations urge you to support the Fairness in Nursing Home Arbitration Act of 2009 (S. 512/H.R. 1237), which would invalidate pre-dispute mandatory arbitration provisions in nursing home, assisted living, and other long-term care facility contracts.

Sixty percent of nursing home admissions are from a hospital and occur after a medical emergency, such as a stroke or broken hip. Individuals are often pressured to accept the first available bed without any opportunity to evaluate the care provided or consider other possible options, and research conducted at Brown University shows that hospitals are more likely to place African Americans in the worst nursing homes. When they unknowingly sign away their right to sue the facility, most families have had no experience with the severity of injuries their loved one could suffer if the facility neglects its responsibility to protect them – such as pressure sores that lead to infection and amputation of limbs; suffocation on bedrails and other restraining devices; physical and sexual assault; renal failure from dehydration; malnutrition; and death from fires in unsprinklered buildings. Some courts have even enforced arbitration clauses included in contracts signed by nursing home residents who were illiterate or had advanced dementia.

Countless government studies show that in spite of improvements in nursing home regulation and enforcement, state regulators still under-cite the seriousness of deficiencies in which residents are harmed; levy fines that are little more than the cost of doing business; and allow facilities to operate year-after-year with serious, repeat problems. Assisted living is poorly regulated in most states, although assisted living residents often have physical and mental disabilities similar to those of nursing home residents.

Mandatory arbitration clauses only further this crisis by serving to protect providers from accountability for bad care. By allowing the provider to pick the arbitration company with which it routinely does business and the rules of the arbitration, the system is set up to heavily favor the provider and leave the family with little or no hope of obtaining justice for their loved one. 

Families should not be required to sign a contract containing a pre-dispute mandatory arbitration clause as a condition of admission nor participate in an arbitration process that they have little or no control over, especially when the dispute involves the suffering and death of their parents and other loved ones. The Fairness in Nursing Home Arbitration Act would end the practice that forces many to do so.

 

Sincerely,

 

National Organizations

 

Alliance for Retired Americans

Alzheimer’s Foundation of America

American Association for Justice

American Federation of State, County, and Municipal Employees

Assisted Living Consumer Alliance

Communications Workers of America

Consumer Federation of America

Center for Justice & Democracy

Center for Medicare Advocacy

Citizen Works

Consumer Action

Consumers for Auto Reliability and Safety

Consumers Union

Hartford Institute for Geriatric Nursing

Homeowners Against Deficient Dwellings

Home Owners for Better Building

Leadership Conference on Civil Rights

National Academy of Elder Law Attorneys

National Consumer Law Center (on behalf of its low income clients)

National Employment Lawyers Association

National Association of Consumer Advocates

National Association of Local Long-Term Care Ombudsmen

National Association of Social Workers

National Association of State Long-Term Care Ombudsman Programs

National Women’s Health Network

NCCNHR: The National Consumer Voice for Quality Long-Term Care

National Senior Citizens Law Center

Neighborhood Economic Development Advocacy Project

Public Citizen

Service Employees International Union

U.S. Public Interest Research Group

 

State Organizations

 

Alabama

Long Term Care Ombudsman Program of Jefferson County

Central Alabama Aging Consortium

 

Arkansas

Arkansas Advocates for Nursing Home Residents

 

California

California Advocates for Nursing Home Reform

Foundation Aiding The Elderly

Long Term Care Services of Ventura County

Ombudsman Services of San Mateo County

Riverside County Long Term Care Ombudsman Program

 

Delaware

Delaware Long-Term Care Ombudsman Program 

Citizens for Long Term Care

 

District of Columbia

Office of the D.C. Long-Term Care Ombudsman Program

 

Florida

ACTION: Advocates Committed to Improving Our NursingHomes

FANHI: Family Advocates for NursingHome and HomeCare Improvement

 

Georgia

Georgia Office of the State Long-Term Care Ombudsman

 

Idaho

Idaho Long Term Care Ombudsman program

 

Illinois

Illinois Citizens for Better Care

Illinois Office of the Long Term Care Ombudsman

 

Indiana

Indiana Long Term Care Ombudsman Program

Long Term Care Ombudsman, Area 12

United Senior Action of Indiana

 

Kansas

Kansas Advocates for Better Care

 

Kentucky

Barren River Area Development District Area Agency on Aging

Kentuckians for Nursing Home Reform

Kentucky – Barren River District Long Term Care Ombudsman

Kentucky Protection & Advocacy

KIPDA District Long-Term Care Ombudsman Program

Nursing Home Ombudsman Agency of the Bluegrass

 

Louisiana

Advocacy Center

Louisiana Long Term Care Ombudsman Program

 

Maryland

Manor Care Chevy Chase Family Council

Montgomery County MD Long Term Care Ombudsman Program

Voices for Quality

 

Massachusetts

Massachusetts Advocates for Nursing Home Reform

Wynn Gerhard, Managing Attorney, Elder Law Unit, Greater Boston Legal Services, on behalf of our clients

Ombudsman Program, Consumer Advocates for Better Care of

Montachusett Home Care Corp.

SeniorCare, Inc./Long Term Care Ombudsman Program

 

Michigan

Citizens for Better Care

Michigan Campaign for Quality Care

 

Minnesota

ElderCare Rights Alliance

Families Against Nursing Home Abuse, Albert Lea

Mid Minnesota Legal Assistance

Office of Ombudsman for Long-Term Care

 

Missouri

Missouri Long-Term Care Ombudsman Program

St. Louis Long Term Care Ombudsman Program

 

New Hampshire

New Hampshire Office of the Long-Term Care Ombudsman

 

New Jersey

Bergen Regional Medical Center Long Term Care Family Council, Paramus NJ

 

New Mexico

New Mexico Long Term Care Ombudsman Program

 

New York

The Coalition of Institutionalized Aged and Disabled

FRIA, The Voice and Resource for Eldercare with Dignity

Long Term Care Community Coalition

New York State Ombudsman Alliance

 

North Carolina

Friends of Residents in Long Term Care

North Carolina Long Term Care Ombudsman Program

 

Ohio

Dayton Long Term Care Ombudsman Program

Ohio Office of the State Long-Term Care Ombudsman

 

Oklahoma

A Perfect Cause

Oklahoma Long Term Care Ombudsman Program

 

Pennsylvania

CARIE

Pennsylvania Long-Term Care Ombudsman Program

 

Rhode Island

Rhode Island Long Term Care Ombudsman Program

 

South Dakota

South Dakota Advocates for Nursing Home Reform

 

Tennessee

Tennessee State Long-Term Care Ombudsman

 

Texas

NHVC, Inc.

Texas Advocates for Nursing Home Residents

 

Vermont

Regional Long Term Care Ombudsman, Vermont Legal Aid, Rutland

 

Virginia

TLC 4 Long Term Care Residents

 

Washington

Alzheimer’s Association, Western and Central WA Chapter

Resident Councils of Washington

Washington State Long Term Care Ombudsman

 

Wisconsin

Coalition of Wisconsin Aging Groups

Wisconsin Long-Term Care Ombudsman Program

 

Wyoming

Wyoming Long-Term Care Ombudsman Program

 

 

 

Congress Must Pass Bill to Protect Families From Unscrupulous Nursing Home Contracts

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Statement of David Arkush, Director, Public Citizen’s Congress Watch Division

Choosing a nursing home or assisted living facility for a loved one is one of the most important and difficult decisions that a family faces. It requires weighing a complicated set of factors such as quality of care, cost and location. Few people faced with this decision pore over the fine print of admissions contracts or worry about whether they are sacrificing important legal rights – and they shouldn’t have to.

The Fairness in Nursing Home Arbitration Act, sponsored in the House by Rep. Linda Sanchez (D-Calif.) and in the Senate by Sen. Mel Martinez (R-Fla.), would help ensure that they don’t. This bill would eliminate one of the worst provisions hidden in the fine print of most nursing home contracts – “pre-dispute binding mandatory arbitration” clauses. These provisions strip residents and their families of the right to hold nursing homes accountable in court, requiring them instead to bring disputes to a private, expensive, secretive forum chosen by nursing homes.

Nursing homes are supposed to provide care for our most vulnerable loved ones, but they are falling down on the job. According to the Department of Health and Human Services, more than 90 percent of nursing homes were fined in 2007 for violating federal health and safety standards. An industry performing so poorly needs more accountability, not less.

The ability to hold a nursing home accountable in court is a critical safeguard against abuse and neglect. Nursing homes shouldn’t be able to take away their residents’ legal rights as a condition of providing service.

To learn more, go to https://fairarbitrationnow.org.

 

The Fairness in Nursing Home Arbitration Act – Cost Analysis

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The Fairness in Nursing Home Arbitration Act bans pre-dispute mandatory binding arbitration clauses from nursing home contracts. Opponents of the bill argue that pre-dispute mandatory binding arbitration should continue as a cost-saving measure. In reality, mandatory arbitration does not save costs, but it does enable ill-practicing nursing homes to escape accountability and public scrutiny while cutting off the rights of our nation’s elderly. Why should nursing home residents have fewer rights than everyone else?

 

  • Limiting accountability through mandatory arbitration encourages poor and negligent nursing home care and increases costs.
  • Nursing home corporations are profitable entities increasingly owned by investment firms.
  • Small Businesses do not see litigation as a major problem.
  • The cost of nursing home care has risen sharply in the last five years due to labor shortages, rising food prices, and round-the-clock care — litigation costs are not a cost driver in this industry.
  • Currently, Medicare and Medicaid end up footing the bill for negligent nursing home care.
  • Nursing home cases usually occur when a resident was injured or has died because of a facility?s neglect. It is the nursing homes that do not take responsibility for the neglect and pursue frivolous costly appeals.

Read the full fact sheet and get informed!

Protect the Elderly from Forced Arbitration

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by David Arkush and Christine Hines

Cross-posted from The Watchdog Blog

Yesterday the Senate Judiciary Committee followed its counterpart in the House and approved an important arbitration bill to protect residents in nursing homes and assisted living facilities, the Fairness in Nursing Home Arbitration Act, S. 2838. The legislation, which a House committee approved in July, will make it easier to hold these facilities accountable for negligent or reckless acts that harm their residents. It prevents nursing homes from forcing residents to agree to arbitration before a dispute arises, allowing residents to turn to the courts in the event their nursing homes cause them serious injuries or death. Without this protection, nursing homes can force residents to take disputes to private arbitrators chosen by the nursing home itself. Guess who wins cases there?

The Judiciary Committee approved the bill despite vigorous opposition from the U.S. Department of Justice and a coalition of business and nursing home industry organizations. The Justice Department embarrassed itself by making wacky and self-contradicting arguments in a letter to the Committee. It said Congress lacks authority to pass this bill, even though nursing home contracts are clearly within Congress’s Commerce Clause power. It also urged Congress to leave the Federal Arbitration Act (FAA) in place – even though the FAA regulates the very nursing home contracts that Congress supposedly can’t regulate. (We wrote a letter responding to DOJ; Paul Bland wrote a great post on the DOJ letter over at CL&P.)

The Committee also heard from a coalition of industry groups, which wrote a letter that misrepresented nearly everything it discussed: the identity and interests of the letter’s signers, the facts about arbitration, the current law, and the effect of the Fairness in Nursing Home Arbitration Act. The group pretended to be interested in consumer protection, claimed that forcing consumers into arbitration preserves "consumer choice" and benefits consumers, claimed that nursing homes currently can’t require arbitration as a condition of admission, and said the bill in Congress would virtually eliminate arbitration – when the bill actually would ensure that consumers can choose whether to go to arbitration voluntarily.

When someone needs to lie so much to make their case, you know they’re on the wrong side of the issue. If this industry group told the truth, it would sound something like, "We’re corporate lobbyists fighting for the right to neglect or abuse elderly nursing home residents with impunity. Our corporate clients want to make millions in profits without worrying about being held accountable if they hurt people." That message probably wouldn’t win much support.

Fortunately, the Hill heard plenty from our broad, genuine coalition of consumer groups, which worked hard to educate congressional members on the bill’s importance. More than 100 organizations from 30 states signed a letter supporting passage of the bill to protect the rights of nursing home residents and their families.

Now that the legislation is out of committee, it could go to the floor for a full vote in either house. This is the perfect time to call your members and urge them to turn this bill into law.