[Congressional Record (Bound Edition), Volume 154 (2008), Part 4]
[Senate]
[Pages 5503-5504]
[From the U.S. Government Publishing Office, www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. MARTINEZ (for himself and Mr. Kohl):
  S. 2838. A bill to amend chapter 1 of title 9 of United States Code 
with respect to arbitration; to the Committee on the Judiciary.
  Mr. MARTINEZ. Mr. President, today Senator Herb Kohl and I are 
introducing the Fairness in Nursing Home Arbitration Act. In my State 
and many others, elderly Americans--as a condition of their being 
admitted to a nursing home--are unfairly asked to agree to arbitrate 
any claims they may have against that nursing home before their claim 
actually occurs. This is not only unfair to those seeking residence, 
but it is also unfair to their families, who often times have no choice 
but to forfeit their loved one's legal rights in order to find them the 
care they need.
  The basis for arbitration is accorded under the Federal Arbitration 
Act, FAA, which Congress enacted in 1925. The FAA was intended to allow 
parties an alternative forum to efficiently resolve business disputes. 
But over time, the FAA has expanded into nonbusiness disputes, 
including those involving nursing homes.
  The legislation I am introducing today is in keeping with the FAA's 
original intent by requiring that agreements to arbitrate nursing home 
disputes be made after the dispute has arisen--not before prospective 
residents move in. While this bill won't prevent arbitration from 
occurring, it will prevent nursing home corporations with greater 
bargaining power from forcing residents to enter into pre-dispute 
arbitration through a non-negotiable contract.
  The trend we are seeing at far too many nursing homes around the 
country is an unwarranted intrusion into a vulnerable population's 
right to access the civil justice system. This bill protects those who 
are otherwise unprotected, and helps to give their families peace of 
mind in knowing their loved ones are able to retain their full legal 
rights should they be abused or injured.
  I applaud my colleague, Senator Kohl for recognizing the egregious 
injustices happening in nursing homes around the Nation, and I urge my 
colleagues to support this necessary bill.
  Mr. KOHL. Mr. President, I rise today with Senator Martinez to 
introduce the Fairness in Nursing Home Arbitration Act of 2008. This 
legislation is a narrowly targeted measure that protects nursing home 
residents, one of

[[Page 5504]]

our Nation's most vulnerable populations, from losing the right to hold 
nursing homes accountable in court for negligent and abusive care.
  The process of admission to a long-term care facility is traumatic 
for the prospective resident and their family. Often these facilities 
are a last resort for families and residents, and many times these 
decisions are arrived at under desperate, and sometimes emergency, 
circumstances. Even admission to an assisted-living facility by a 
relatively healthy senior citizen is a stressful and emotional event. 
Adding to the difficulty, many families face limited options in nursing 
care when it comes to both geographic location and the level of care 
required for their loved one.
  During the admissions process, prospective residents and their 
families have little choice other than to accept the terms of the 
admission agreement with no ability to negotiate. Many facilities now 
require residents, or their responsible family members, to sign 
contracts that include predispute mandatory arbitration agreements. 
This means that any dispute between the resident and the facility will 
automatically be subject to arbitration. In other words, by agreeing to 
the contract, and before a dispute ever arises, they are unwittingly 
signing away their constitutional right to have their case heard by an 
impartial judge or jury.
  Unlike other uses of arbitration, arbitration in the nursing home 
context is usually related to health care and often involves cases of 
abuse and neglect that result in serious injuries or death. While civil 
court proceedings are generally open to the public, most arbitration 
requires that all parts of the process be kept confidential. As a 
result, long term care facilities are not held publicly accountable for 
their substandard care. Even worse, this potentially lifesaving 
information may be concealed from current and prospective residents, 
regulatory agencies, and the public.
  Another troubling aspect of arbitration clauses in nursing home 
admissions agreements is that they are often buried in long contracts 
and presented on a take-it-or-leave-it basis, without any opportunity 
to negotiate. While some facilities may attempt to explain the meaning 
of the arbitration clause and make it seem voluntary, the focus of the 
admissions process is on the loved one in need of care and not on these 
technical legal aspects of the agreement. Family members of prospective 
residents, whether or not they understand the arbitration provision, 
feel compelled to sign it in order to ensure that their loved one will 
be admitted and that their care will not be compromised by their 
refusal.
  One of many tragic examples we have learned about is the case of Ella 
Needham. After being hospitalized with a urinary tract infection, she 
was taken to a nursing home by her daughter. During the hasty 
admissions process, her daughter signed a mandatory arbitration 
agreement. Both were unaware that they were signing away their 
constitutional right to a jury trial. During Ella's stay, the nursing 
home staff abused her, failed to adequately hydrate her, and did not 
adequately treat her illness. As a result of this negligence and abuse, 
Mrs. Needham died. When her daughter sued the home, she discovered that 
she was not allowed to go to court because of the arbitration 
agreement. After months of litigation challenging the agreement, the 
appeals court upheld the requirement to arbitrate. The daughter was 
forced to settle her claims of abuse and neglect in arbitration.
  It is important to note that our bill does not preclude arbitration 
as an option for resolving disputes between nursing home residents and 
long term care facilities. The legislation simply says that families 
and prospective residents cannot be forced into arbitration through a 
nonnegotiable contract prior to the dispute. This will ensure that 
arbitration is a voluntary forum to resolve these unique disputes that 
can have far reaching consequences.
  I urge my colleagues to support this important legislation.

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