[4alabama] Bill Would End Nursing Home's Growing Practice of Asking Patients to Arbitrate

[Judy R. Roy]

Two U.S. senators have introduced legislation that would end the practice of
nursing home residents signing away their right to a trial before any actual
dispute with the facility has arisen.
Nursing homes are increasingly asking -- or forcing -- patients and their
families to sign arbitration agreements prior to admission. By signing these
agreements, patients or family members give up their right to sue if they
believe the nursing home was responsible for injuries or the patient's
death. The Fairness in Nursing Home Arbitration Act, introduced by Sens. Mel
Martinez (R-FL) and Herb Kohl (D-WI), chairman of the Special Committee on
Aging, would make arbitration agreements signed before a dispute arises
unenforceable, although it would still permit the parties to agree to
arbitration after a dispute over care has arisen.

"When a family makes the difficult decision to help a loved one enter a
nursing home, among the primary considerations is quality care. Forcing a
family to choose between quality care and forgoing their rights within the
judicial system is unfair and beyond the scope of the intent of arbitration
laws," said Sen. Martinez. "This effort restores the original intent and
tells families that they don't have to sign away their rights in order to
access quality care."

The increased use of arbitration agreements has been paying off for the
nursing home industry, according to a recent article in the Wall Street
Journal. A study by Aon Global Risk Consulting projects that nursing homes'
average costs per claim will drop from about $226,000 for incidents that
took place in 1999 to about $146,000 for incidents that took place in 2006.

Theresa Bourdon, one of the study's authors and an Aon managing director,
says that out of more than 200 claims she looked at that were subject to
arbitration, none has yielded a multimillion-dollar payout. "We are not
seeing big pops," Ms. Bourdon says.

But as industry litigation costs have been dropping, claims of poor
treatment are on the rise, the Wall Street Journal reports. Meanwhile,
patient advocates say that those seeking admission to a nursing home are in
no position to make a determination about giving up their right to sue.
Courts have sometimes struck down arbitration agreements as unfair, but
others have upheld them. In Ohio last year, a court upheld an agreement
signed by a woman who had entered a home from a hospital and was suffering
intermittent bouts of confusion.

To read the Fairness in Nursing Home Arbitration Act (courtesy of the
National Senior Citizens Law Center), click here.

To read the Wall Street Journal article, click here. (Online subscription
required.)

For more on nursing home admission agreements, click here.

Judy R. Roy
Independent Living Resources of Greater Birmingham
206  13th Street S.
Birmingham, AL  35233-1317
Phone  205.251.2223  ext 102
Email  bhamilc1 at bellsouth.net
There are only four kinds of people in the world: those who have been
caregivers; those who are currently caregivers; those who will be
caregivers; those who will need caregivers. - Rosalynn Carter

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Two U.S. senators have introduced legislation that would end the practice of nursing home residents signing away their right to a trial before any actual dispute with the facility has arisen.
Nursing homes are increasingly asking -- or forcing -- patients and their families to sign arbitration agreements prior to admission. By signing these agreements, patients or family members give up their right to sue if they believe the nursing home was responsible for injuries or the patient's death. The Fairness in Nursing Home Arbitration Act, introduced by Sens. Mel Martinez (R-FL) and Herb Kohl (D-WI), chairman of the Special Committee on Aging, would make arbitration agreements signed before a dispute arises unenforceable, although it would still permit the parties to agree to arbitration after a dispute over care has arisen.
"When a family makes the difficult decision to help a loved one enter a nursing home, among the primary considerations is quality care. Forcing a family to choose between quality care and forgoing their rights within the judicial system is unfair and beyond the scope of the intent of arbitration laws," said Sen. Martinez. "This effort restores the original intent and tells families that they don't have to sign away their rights in order to access quality care."
The increased use of arbitration agreements has been paying off for the nursing home industry, according to a recent article in the http://online.wsj.com/article/SB120786025242805879.html
Wall Street Journal
. A study by Aon Global Risk Consulting projects that nursing homes' average costs per claim will drop from about $226,000 for incidents that took place in 1999 to about $146,000 for incidents that took place in 2006.
Theresa Bourdon, one of the study's authors and an Aon managing director, says that out of more than 200 claims she looked at that were subject to arbitration, none has yielded a multimillion-dollar payout. "We are not seeing big pops," Ms. Bourdon says.
But as industry litigation costs have been dropping, claims of poor treatment are on the rise, the
Wall Street Journal
reports. Meanwhile, patient advocates say that those seeking admission to a nursing home are in no position to make a determination about giving up their right to sue. Courts have sometimes struck down arbitration agreements as unfair, but others have upheld them. In Ohio last year, a court upheld an agreement signed by a woman who had entered a home from a hospital and was suffering intermittent bouts of confusion.
To read the Fairness in Nursing Home Arbitration Act (courtesy of the http://www.nsclc.org/ National Senior Citizens Law Center
), http://www.nsclc.org/areas/long-term-care/area_folder.2006-09-28.5043064909/fairness-in-nursing-home-arbitration-act/at_download/attachment click here
.
To read the
Wall Street Journal
article, http://online.wsj.com/article/SB120786025242805879.html click here
. (Online subscription required.)
For more on nursing home admission agreements, http://www.elderlawanswers.com/resources/article.asp?id=6360&section=4&state= click here
.
Judy R. Roy
Independent Living Resources of Greater Birmingham
206  13th Street S.
Birmingham, AL  35233-1317
Phone  205.251.2223  ext 102
Email  bhamilc1 at bellsouth.net
There are only four kinds of people in the world: those who have been caregivers; those who are currently caregivers; those who will be caregivers; those who will need caregivers. - Rosalynn Carter