Fairness in Nursing Home Arbitration Act returns

March 3, 2009

Representative Linda Sanchez (D-CA) has reintroduced the Fairness in Nursing Home Arbitration Act.  This act seeks to ban pre-dispute arbitration agreements, even if the arbitration agreement is not required for admission. The parties could agree to arbitration only after a dispute arises.   When the bill was last introduced, and defeated, it included Assisted Living facilities as well as Skilled Nursing Facilities, but the text of the bill’s most recent iteration is not yet available for public review.  

Arbitration agreements have been circling back again and again as one of the most contentious debates in LTC Administration.  From a legal standpoint, arbitration almost assuredly means faster recovery time, and less cost for both plaintiff’s and defendants alike (or complaintents and answerers in the parlance of some Alternative Dispute Resolution folks).

 The at bottom question can be phrased like this: is LTC different from other business such that the only pathway to remedy must necessarily be one through the courts?  

Opinions are myriad, but I will be interested to see, and write about, the debate on Rep. Sanchez’ bill.

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4 Responses to “Fairness in Nursing Home Arbitration Act returns”

  1. Mike Says:

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  2. Drew Graham Says:

    You have summarized the bottom line perfectly. Arbitration works well. It is fast, cost effective, and cuts legal fees on both sides. Arbitrators typically can be more objective than some juries. Face it, these are very emotional cases, and asking jurors to put emotion aside is a very difficult order.

    When presented appropriately, arbitration agreements offer a great alternative to litigation for some people. This idea that nursing homes present them as conditions of admission is just not accurate. CMS in 2003 specifically stated that this was not allowed, and has been enforcing the rules aggressively.

    Drew Graham

    • nursinghomeadministrator Says:

      The piece of your argument about how well arbitration treats emotional cases is right on target. And, I think that piece often, unfortunately, takes a back seat to the finance and expediency arguments in the debate over arbitration agreements with nursing homes.

      As to your other point, I think Rep. Sanchez’ bill seeks to bolster the CMS rule you reference, as well as limit the availability of arbitration in disputes involving nursing homes and residents. The real key here (and the most distressing move in my opinion) is the effort to ban all pre-dispute arbitration agreements with nursing homes. This effectively cuts out a whole avenue of litigation planning for operators, and is very likely going to increase overall costs for residents and their families – – not to mention the other parade of horribles you obliquely reference in the first paragraph of your comment.


  3. […] T. Andrew Graham has commented on this blog before w/r/t these issues, and has both command and clarity in discussing Arbitration […]


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