The current Executive branch has proposed a rule allowing for nursing homes to force incoming patients to agree to private arbitration of any dispute that may arise due to care received at the nursing home. Failure to agree to this condition, which waives the right to a jury trial and use of the traditional court system, would allow the nursing home to refuse admission.
As is detailed in a letter from the American Bar Association (ABA), this type of forced arbitration provision is not one designed to help the individuals who most need care, but only the corporations providing that care. The ABA proposes that aarbitration provisions should only be allowed in these circumstances when both parties agree to same after a dispute over care has arisen. The entire letter can be found here.
As a significant percentage of our population ages and more and more people will find themselves in the need of a nursing home for after care following a serious operation or health crisis – as well as simply to reside in safely for the remainder of their lives – this issue will ultimately affect the vast majority of Americans.
We believe that the right to sue is the single most important check and balance on any type of business, as can be seen by the chronology of different safety devices that are now standard and required in the automotive industry. The privatization of arbitration of disputes in the nursing home context puts one of our most vulnerable populations at risk of harm because the private system limits both recoveries and, more importantly, information from the marketplace so that a consumer cannot even know the track record of a facility that one is dependent upon to take actual physical care of them. Few individuals will not sign the paperwork presented to them when they are in acute need of the nursing home’s services. For all of these reasons, we agree that the benefits of these forced arbitration clauses to the nursing homes are far less important than the benefits to the people that these homes are dedicated to serve.