Arbitration Under Attack

By June 16, 2008General

For the second week in a row, there will be a committee hearing in Congress on legislation to ban predispute arbitration agreements in long-term care contracts. Last week it was the House Judiciary Subcommittee on Commercial and Administrative Law with its hearing on H.R. 6126, the Fairness in Nursing Home Arbitration Act of 2008. This week it’s a joint hearing by a Senate Judiciary subcommittee with the Special Committee on Aging; Judiciary Chairman Herb Kohl (D-WI) will chair, and he’s the sponsor with Sen. Mel Martinez (R-FL) of S. 2838, the Fairness in Nursing Home Arbitration Act.

The Mother Jones blog profiles Republican trial lawyer Ken Connor in this post, an interesting look into the politics of suing nursing homes. To its credit, MoJo paints the big picture accurately:

The nursing home arbitration bill is one of nearly a dozen Democratic-backed measures introduced in Congress over the past year that would ban mandatory arbitration in everything from new car contracts to meatpacking company agreements. With the backing of the powerful AARP, it’s also the most likely of the lot to pass, and thus, pave the way for Congress to ban mandatory arbitration altogether. After all, if Congress deems the practice unconscionable for seniors, businesses will have a tough time arguing that it still ought to be forced on everyone else.

For a clear argument on the value of arbitration agreements — and a spirited defense of the long-term care industry — we direct you to the testimony last week of Gavin Gadberry on behalf of the American Health Care Association and National Center for Assisted Living:

In the increasingly litigious environment, a growing number of health care and long term care providers – including nursing facilities and assisted living residences – have incorporated arbitration clauses into their admissions materials given to residents when being admitted to the facility or residence. AHCA/NCAL supports the use of arbitration agreements as a viable option for long term care providers and their residents to resolve legal disputes. Arbitration is less adversarial than traditional litigation, produces quicker results and has been determined to be both fair and appropriate by our courts.

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