Support the Fairness in Nursing Home Arbitraton Act

With Congress in the midst of debating and considering the health package now is a good time to ask them to pass Fairness in Nursing Home Arbitration Act ( Senate Bill 2838) to help protect our elderly from the basic unfairness of arbitration contracts when a nursing home patient is neglected or abused. The bill has been referred out of committee. It needs to be voted on and passed. Last year when the bill was before a committee in the Senate, our Senator Jeff Sessions was on that committee and voted against the bill. I could not believe it and wrote him. He responded by saying that he was trying to protect nursing home operators from errant jury verdicts. I blogged – calling that 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. Maybe Senator Sessions would consider changing his vote if enough of us wrote him letters. He does represent us and if we tell him we want juries, like our Constitution allows, and not arbitrators to determine who is at fault, maybe he will change his mind.

This bill would amend the Federal Arbitration Act (FAA) to invalidate mandatory binding arbitration contracts that are unfair to the elderly because they take away their right to be heard in a court of law and increase their vulnerability to neglect and abuse in a care facility.

The bill does not prohibit arbitration. Rather, it would ensure that the resident or his or her representative could voluntarily choose arbitration after a dispute arose. If arbitration is truly fair and efficient, as some have argued, then both sides should be able to voluntarily choose arbitration after – not before – a dispute arises.

I have seen nursing home corporations insert forced arbitration clauses in their contracts and have them signed by residents who have dementia, by family members who are told they have to sign the whole agreement or their loved one will not be admitted and by the nursing homes own employees who forge signatures. Why do the nursing homes want arbitration so badly? Because it means they will never be held publicly accountable for their actions, no matter how egregious their conduct. Then when a decision is made by most likely a hand-picked arbitrator, the patient is denied the opportunity for judicial review.

On the other hand, if allowed to utilize the court system, society benefits from an open legal process that exposes neglect and abuse. One of the most important benefits of civil lawsuits is the discovery process, which often discloses shoddy corporate practices, such as staff reductions, that lead to neglect. Forced arbitration, on the other hand, restricts residents’ ability to get information and keeps abusive business practices hidden.

Some of you may have read about the lawsuit and settlement by Minnesota’s Attorney General against the National Arbitration Forum (NAF). Basically, the NAF, whose name as the arbitrator is prominent in nursing home arbitration contracts, was accused of improper conduct favoring businesses, including nursing homes, in their awards. In the settlement, NAF has agreed to not participate in consumer arbitration any more. Let’s not let the industry find another hound dog to do their bidding. Taking away arbitration or at least giving the consumer a choice, should be a proper remedy.

So, let Senator Sessions and Rep. Jo Bonner hear from us! Tell them you want juries – not hand-picked arbitrators to decide the issue of nursing home neglect. Let our judges then review the decision and if it violates the law, they have the power to correct it. They are trained to do that and we should trust them and not arbitrators.