|
E-mail this page to a friend!
Senior Citizen Politics
Bill to Stop Nursing Homes from Forcing Mandatory
Arbitration Gets Senate Hearing
Sen. Kohl brings aging committee and judiciary
subcommittee together on his bill
June 19, 2008 - Senator Herb Kohl (D-WI) yesterday
chaired a joint hearing on S. 2838, the Fairness in Nursing Home
Arbitration Act of 2008, which is aimed at preventing nursing homes
from forcing new patients to sign contracts agreeing to mandatory
arbitration in the event of any disputes. He is chairman of both senate
panels.
The legislation, introduced in April by Kohl and
Senator Mel Martinez (R-FL), is a narrowly targeted measure that would
protect nursing home residents, one of our nations most vulnerable
populations, from losing the right to hold long-term care facilities
accountable in court for negligent and abusive care, according to a
statement from Kohl.
Currently, many facilities require residents or
their responsible family members to sign contracts that include
pre-dispute mandatory arbitration agreements, meaning that any dispute
between the resident and the facility will automatically be subject to
arbitration.
By agreeing to the contract before a dispute ever
arises, they are unwittingly signing away their constitutional right to
have their case heard by an impartial judge or jury, Kohl says.
Additionally, 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.
Kohl is Chairman of both the Judiciary Subcommittee
on Antitrust, Competition and Consumer Rights and the Special Committee
on Aging.
Following is a list of those who testified.
Click the names to read their presentations.
●
David Kurth, Burlington, WI
●
Alison Hirschel, President, National Citizen's Coalition for Nursing
Home Reform, East Lansing, MI
●
Kelley C. Rice-Schild, CNHA, Executive Director, Floridean Nursing
and Rehabilitation Center, Miami, FL
●
Ken Connor, Esq., Wilkes and McHugh, PA, Washington, DC
●
Stephen J. Ware, Professor of Law, University of Kansas
Below are reports from earlier today and
yesterday by KaiserNetwork.org on this hearing.
Joint Hearing on Nursing Home Bill
The Senate Judiciary Committee
Antitrust, Competition Policy and Consumer Rights Subcommittee and
the
Senate Special Committee on Aging on Wednesday held a joint hearing
that focused on a
bill (S
2838) under which nursing homes could not require new patients to
agree to settle any quality-of-care disputes through arbitration.
During the hearing, Aging Committee Chair Herb Kohl
(D-Wis.) said that "we must protect the right of those who receive
inadequate care to hold poor-performing facilities publicly
accountable." Bill sponsor Mel Martinez (R-Fla.) said that such
arbitration requirements are "removing the one incentive the industry
has to self-regulate."
A nursing home industry representative said that
such arbitration requirements help reduce liability costs for the
facilities, as well as the time required to settle quality-of-care
disputes. Sen. Orrin Hatch (R-Utah) said that a ban on such arbitration
requirements would increase liability costs for nursing homes and force
many of the facilities to close (Reichard, CQ HealthBeat, 6/19).
Editors Note: The following was
reported yesterday on the nursing home bill
Lawmakers Push for Legislation That Would Make
Binding Arbitration Agreements at Nursing Homes Unenforceable [Jun
18, 2008]
Several Senate lawmakers are pushing legislation
that would make binding arbitration agreements by nursing homes
unenforceable, the
AP/San Francisco Chronicle reports. Nursing homes say that
arbitration agreements are voluntary and typically offer a quicker, less
costly way than court to settle legal disputes. Bruce Yarwood, president
of the
American Health Care Association, said that arbitration "is
something that's a lot more fair" because the court structure is "not
necessarily an unbiased structure," as juries are inclined to hold
nursing homes responsible for injuries regardless if they are actually
at fault.
However,
Senate Aging Committee Chair Herb Kohl (D-Wis.) said, "Many incoming
residents lack the capacity to make even simple decisions, much less
judge the legal significance of an arbitration agreement."
Legislation sponsored by Sen. Mel Martinez (R-Fla.),
supported by
AARP and the
Alzheimer's Association, would make arbitration agreements for
nursing home patients unenforceable. According to the committee, more
than 100 lawsuits have been filed in the last five years challenging
such agreements.
The committee will hear testimony on Wednesday from
a family who tried to file a lawsuit against a nursing home alleging
that negligent care led to a family member's death. The case was
dismissed because the wife of the patient had signed an arbitration
agreement as a condition of his admission.
Stephen Ware, a law professor at the
University of Kansas, in written testimony urged lawmakers not to
ban arbitration for nursing homes, noting that the Federal Arbitration
Act in some cases allows courts to invalidate unconscionable arbitration
agreements. "And this is not just a theoretical protection," Ware wrote.
"Each year, there are many cases in which courts hold particular
arbitration agreements unconscionable. Among these are cases involving
nursing homes."
Lawmakers are not looking to ban arbitration as an
option to settle disputes with nursing homes, Kohl said, but rather they
want to mandate that a decision to enter arbitration be made by both
parties after a dispute occurs (Freking, AP/San Francisco Chronicle,
6/17).
Click to More Senior News on the
Front Page
Copyright: SeniorJournal.com |
