During one of the many hearings I held on arbitration when I chaired the Subcommittee on Commercial and Administrative Law (CAL), I listened to the testimony of a witness whose 92-year old grandmother sustained a broken leg while living in a nursing home. Her grandmother’s leg had been broken in two places with the kind of injury that occurs when a bone is twisted – sort of like the same motion you would make when twisting off a bottle cap. The injury went unreported by nursing home staff, and because of inadequate care, her leg was eventually amputated. When the family attempted to file a lawsuit, they were forced into mandatory arbitration by the nursing home – all because of a couple sentences in the fine print of the contract they had no choice but to sign. They felt voiceless and powerless with no right to try their case to a jury.
Many stories like these were presented in four different CAL hearings on arbitration. I heard from attorneys, professors, and individuals about unfortunate experiences with the arbitration process. But, because of the emotional issues surrounding placing a loved one in a nursing home, the inclusion of arbitration clauses in long-term care facility contracts seemed the most egregious to me.
To protect seniors and their families, I have re-introduced the Fairness in Nursing Home Arbitration Act to make pre-dispute, mandatory arbitration clauses in long-term care contracts unenforceable and to restore full legal rights to seniors and their families. This legislation will not prohibit arbitration, but will simply ensure that nursing home residents have the choice whether to arbitrate a dispute after it has arisen.
The long-term care industry is one stark example where businesses draft “take-it-or-leave-it” admission agreements for prospective residents that include pre-dispute, mandatory arbitration clauses. For desperate families who are unable to provide adequate care in the home setting, the need for an immediate placement for their loved one makes the “take-it-or-leave-it” choice, no choice at all.
Families who are in the midst of the heartbreaking decision to place a parent or a loved one into a nursing home rarely have the time or wherewithal to fully and thoughtfully consider mandatory arbitration clauses. Simply dealing with the emotional and traumatic process of searching for a long term care facility makes it impossible for residents and their families to worry about the potential loss of the constitutional right to a jury trial. What’s real and immediate is not some future dispute but proper care of a loved one.
The emotional toll and the sense of vulnerability when moving a loved one into the care of strangers at a nursing home is something I am all too familiar with. My father, who has been diagnosed with Alzheimer’s, was recently placed into a nursing home, and one of the last things I wanted to worry about when searching for that perfect placement was whether he was giving up his legal rights. My family and I wanted to focus on the quality and range of services the facility would provide him. As it turned out, we chose a facility that met our requirements but also had a mandatory arbitration clause in its contract.
Assuredly, I am completely supportive of the principles of arbitration and the arbitration process. However, the process should remain fair. Families should have the option to choose to arbitrate once they know the facts, rather than be forced into a one-sided agreement.
By 2040, the demand for long term care services will more than double. Arbitration agreements are often buried in overly complicated contracts, and many consumers do not realize they are waiving their legal options. We have to protect families and seniors, and that includes giving them the tools they need to protect their full legal rights. The Fairness in Nursing Home Arbitration Act will do just that.