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Protect the Elderly from Forced Arbitration

by David Arkush and Christine Hines

Yesterday the Senate Judiciary Committee followed its counterpart in the House and approved an important arbitration bill to protect residents in nursing homes and assisted living facilities, the Fairness in Nursing Home Arbitration Act, S. 2838. The legislation, which a House committee approved in July, will make it easier to hold these facilities accountable for negligent or reckless acts that harm their residents. It prevents nursing homes from forcing residents to agree to arbitration before a dispute arises, allowing residents to turn to the courts in the event their nursing homes cause them serious injuries or death. Without this protection, nursing homes can force residents to take disputes to private arbitrators chosen by the nursing home itself. Guess who wins cases there?

The Judiciary Committee approved the bill despite vigorous opposition from the U.S. Department of Justice and a coalition of business and nursing home industry organizations. The Justice Department embarrassed itself by making wacky and self-contradicting arguments in a letter to the Committee. It said Congress lacks authority to pass this bill, even though nursing home contracts are clearly within Congress’s Commerce Clause power. It also urged Congress to leave the Federal Arbitration Act (FAA) in place – even though the FAA regulates the very nursing home contracts that Congress supposedly can’t regulate. (We wrote a letter responding to DOJ; Paul Bland wrote a great post on the DOJ letter over at CL&P.)

The Committee also heard from a coalition of industry groups, which wrote a letter that misrepresented nearly everything it discussed: the identity and interests of the letter’s signers, the facts about arbitration, the current law, and the effect of the Fairness in Nursing Home Arbitration Act. The group pretended to be interested in consumer protection, claimed that forcing consumers into arbitration preserves "consumer choice" and benefits consumers, claimed that nursing homes currently can’t require arbitration as a condition of admission, and said the bill in Congress would virtually eliminate arbitration – when the bill actually would ensure that consumers can choose whether to go to arbitration voluntarily.

When someone needs to lie so much to make their case, you know they’re on the wrong side of the issue. If this industry group told the truth, it would sound something like, "We’re corporate lobbyists fighting for the right to neglect or abuse elderly nursing home residents with impunity. Our corporate clients want to make millions in profits without worrying about being held accountable if they hurt people." That message probably wouldn’t win much support.

Fortunately, the Hill heard plenty from our broad, genuine coalition of consumer groups, which worked hard to educate congressional members on the bill’s importance. More than 100 organizations from 30 states signed a letter supporting passage of the bill to protect the rights of nursing home residents and their families.

Now that the legislation is out of committee, it could go to the floor for a full vote in either house. This is the perfect time to call your members and urge them to turn this bill into law.