Nursing Home Residents Shouldn't Lose Right to Sue, Senators Say

The Senate has introduced a bill that would prohibit nursing homes from having residents sign away their right to sue before any disputes arise.

The Fairness in Nursing Home Arbitration Act would bar the facilities from asking prospective residents to sign arbitration agreements before being admitted.

Herb Kohl, D-Wis., who chairs the Senate Special Committee on Aging, and committee member Mel Martinez, R- Fla., co-sponsored the bill.

In an April 9 joint statement with Kohl, Martinez denounced the fast-growing trend of requiring patients to agree to arbitration as the sole way to resolve disputes.

"Forcing a family to choose between quality care and foregoing their rights within the judicial system is unfair and beyond the scope of the intent of arbitration laws," Martinez said.

Kohl said nursing home residents are among the nation's most vulnerable citizens and should not lose their right to hold their caregivers accountable for abuse and neglect.

"This bipartisan legislation protects senior long-term-care residents who unwittingly sign away their constitutional right to have their case heard by an impartial judge or jury," he said.

Arbitration has recently become a hot-button issue in nursing home litigation. A slew of courts across the nation have addressed whether to enforce arbitration agreements signed during the admissions process.

The decisions have been wide-ranging and wildly inconsistent from state to state and even from court to court. If the Senate bill passes, the issue of arbitration agreements' enforceability should finally be resolved.

The legislation would not prohibit agreements seeking to arbitrate nursing home cases after a dispute has arisen.

Proponents of the bill say it would prevent nursing home owners and operators, who usually have greater bargaining power than residents and their families, from using such agreements in nonnegotiable admissions contracts.

The legislation would ensure that arbitration is voluntary and un-coerced, they say.

The bill would make any pre-dispute arbitration agreement invalid and unenforceable and would apply to any dispute or claim that arises on or after the date it is enacted.

Furthermore, it would require the courts, not arbitrators, to determine the validity or enforceability of an arbitration agreement.

The bill now heads to the Senate Judiciary Committee.

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