This page contains information on forced pre-dispute arbitration agreements and the dangers they pose to long-term care consumers. Click on the topic areas below to find more information.
Senator Al Franken (D-MN) and Representative Henry. C “Hank” Johnson, Jr. (D-GA) re-introduced the Arbitration Fairness Act (S. 878; H.R. 1844) in the 115th Congress. This important legislation would protect consumers by barring the use of any mandatory pre-dispute arbitration agreements, including the use of these agreements in long-term care facility admission contracts.
In the 112th Congress, Congresswoman Linda Sanchez introduced the Fairness in Nursing Home Arbitration Act, which would have ensured residents or their representatives could voluntarily choose arbitration after a dispute arose. The bill would have amended the Federal Arbitration Act to eliminate binding mandatory pre-dispute arbitration agreements in nursing home and other long-term care facility contracts and has not been re-introduced in the current 114th Congress.
In addition, CMS banned pre-dispute arbitration clauses in nursing home admission contracts in the revised federal nursing home regulations. However, this portion of the revised rule has not gone into effect yet pending the outcome of the current lawsuit.
Urge Congress to Bar Pre-Dispute Arbitration Agreements in Long-Term Care Contracts! Ask Congress to re-introduce the Fairness in Nursing Home Arbitration Act, or urge your legislators to support the Arbitration Fairness Act.
Click here to find your Member(s) of Congress!
Call Congress to advocate for eliminating these agreements in nursing home contracts! Contact the U.S. Capitol Switchboard at (202)224-3121 and ask for your senators' and/or representative's office.
Urge your family, friends, and fellow advocates to do the same!
Arbitration is process in which a dispute is settled using a process in which one or more arbitrators decides the outcome instead of a jury made up of members of the community. “Pre-dispute” arbitration means that the consumer must agree to arbitration before any dispute arises.
Pre-dispute arbitration agreements are increasingly included in nursing home and other long-term care facility admission contracts that consumers or their families must sign in order for the consumer to be admitted as a resident. Once signed, these agreements bar consumers from seeking legal action in court should they suffer harm or injury while residing in the facility.
Many advocates have challenged the right of facilities to include pre-dispute arbitration agreements within admission contracts. However, on February 21st, 2012, the Supreme Court issued a decision in the case of Marmet Health Care Center v. Brown et al. that allowed for the enforcement of pre-dispute arbitration clauses.In its February decision, the Supreme Court ruled that these clauses were not barred by the Federal Arbitration Act and therefore could be included in consumer contracts.
Forced pre-dispute arbitration agreements:
Place consumers at a disadvantage during the admissions process: Nursing home admissions are usually unplanned and often happen when individuals and their families are under pressure to enter into facility care as quickly as possible. Pre-dispute arbitration agreements are generally offered on a ‘take it or leave it’ basis by facilities. Consumers may be forced into signing an arbitration agreement because “leaving it” and trying to find another place right then and there is not an option. Arbitration agreements can often be buried within the fine print of admission contracts and may go unnoticed by many consumers given the huge amount of paperwork that must be signed during the admissions process.
Strip consumers of their constitutional right to a trial by jury: When consumers sign an arbitration agreement, they sign away forever their constitutional right to a trial by jury. Such a decision should be given careful consideration. However, individuals and their families are pressured into signing blanket arbitration agreements in advance, without having any idea what they might be arbitrating and with only the information the facility chooses to give them about what arbitration is about. No one can make an informed decision under such circumstances!
Deny consumers the benefits and advantages of a court of law: Arbitrators are private individuals who may be chosen by the nursing home - not publicly elected or appointed officials, like judges. Arbitration can be very costly and is usually far more expensive than court. Residents and families not only have to hire a lawyer, but also generally have to pay a part of the arbitrator's fee. This is like paying the judge - which consumers don't have to do in court! Due to the cost, arbitration may not be possible for many residents and families - leaving them with no legal recourse. And once a decision is issued, consumers typically cannot appeal it as they can in the court system.
Place consumers at increased risk: According to a GAO report, eighteen states cited more than 20 percent of their nursing homes for harming residents or placing them at risk; 12 states cited at least a quarter of their facilities for dangerous conditions or actual harm. As alarming as these statistics are, this report and other government studies have found that many states cite fewer serious deficiencies than actually occur and do not impose appropriate or effective remedies. When long-term care consumers are denied the option of holding facilities accountable for poor treatment, poor care and abuse through an open and unbiased legal process, the well-being of all long-term care residents suffers as a result.
Far too often, the only remedy injured residents of long-term care facilities and their families have is the ability to hold the facility accountable in a court of law. Mandatory arbitration clauses take away this ability. With little or no oversight, facilities have no incentive to prevent the horrible cases seen here from being repeated.
William Kurth, 84, a World War II veteran from Wisconsin, who was allowed to develop dehydration, malnutrition and pressure sores so severe his bones and organs were exposed — factors that led directly to his death.
Vunies High, 92, the sister of the legendary boxer Joe Louis, who froze to death when she wandered outside her assisted living facility wearing only her pajamas.
Ms. L.C. Gould, 85, a Florida nursing home resident who broke her hip in a fall when she was unattended in the bathroom. She subsequently died from complications of surgery for the broken hip, including the facility’s failure to assess and properly treat an infection.
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