ARBITRATION BILL TO PROTECT NURSING HOME RESIDENTS

Last Tuesday, a new administration was sworn in and with some significant changes in Congress there is real optimism that the S. Bill 2838, Fairness in Nursing Home Arbitration Act may pass this year. This bill provides that a pre-dispute arbitration agreement between a long-term care facility and a resident (or anyone acting on the resident’s behalf) shall not be valid or specifically enforceable.

Last year the bill was before a committee in the Senate. Senator Jeff Sessions was on that committee and voted against the bill. I was aghast and wrote him a letter expressing my amazement that he would not want Alabama citizens to have equal access to our court system as opposed being forced to arbitrate. His response was that he was trying to protect nursing home operators from errant jury verdicts. That is a slap at the citizens of Alabama. We can be trusted to elect him but not to rule fairly in lawsuits as jurors. I guess he forgot, we elect judges trained in the law whose job is to make sure juries follow the law and to protect the system when they don’t. I would rather take my chances with a jury and judges than arbitrator(s) many of whom are tied in with the nursing home industry.

Luckily, there were Senators on the committee who recognized the need to remove this unfair practice and the bill came out of committee unchanged. On Oct 1, 2008, it was placed on Senate Legislative Calendar under General Orders. Calendar No. 1109. If this act passes, nursing home abuse cases will be in the hands of our court system with the trained judges and juries to make decisions- not hand -picked arbitrators.

The steps nursing homes take to avoid liability when faced with claims of nursing home abuse and to force, at times, incompetent residents to arbitrate claims is unconscionable. I have seen nursing homes forge the signature of an incompetent resident; seen nursing homes try to enforce arbitration agreements against the resident when the home has totally ignored the standard of care; have family members with no legal authority sign arbitration agreements for their loved ones without really knowing what they were signing; had families denied any opportunity to pursue a claim because the arbitration industry fees are outrageous while they are paying taxes to keep our courthouses open; observed the industry snub its residents by telling them they have ‘wasting’ insurance policies where the money goes to pay their defense counsel leaving nothing for the injured; and try to avoid paying claims by establishing multiple corporations to hide assets- most of which come from being paid by government programs like Medicare and Medicaid or from private citizens- many of whom had to sell assets to put their loved one in a nursing home.. All of this is particularly disturbing when one considers that the purpose of nursing homes is to care and protect the elderly. Nursing home residents are vulnerable and unprotected despite Federal Regulations. As much as we wish it did not happen nursing home abuse occurs and our courts are set up to resolve those issues. The decisions should not be in the hands of selected arbitrators with no safeguards of appeal or review. The nursing home industry should not be allowed to deprive consumers of jury trials for injuries inflicted upon the most vulnerable of our society.

Keep a lookout for news about this bill. Write Senator Sessions and urge him to change his vote when this bill comes up for vote on the Senate floor.

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