FHCA Opposes Prohibiting Pre-Dispute Agreements in Long Term Care Settings

Fairness in Nursing Home Arbitration Act Discriminates Against Long Term Care Patients, Providers

In September the U.S. Senate Judiciary Committee passed a voice vote on the Fairness in Nursing Home Arbitration Act (s.2838), The Senate bill, which is co-sponsored by FL Sen. Mel Martinez, would effectively eliminate the use of pre-dispute arbitration agreements in long term care settings. Several committee members voiced opposition to the bill, and it seems it is unlikely that either the Senate or the House version (H.R. 6126) will be addressed before the 110th Congress adjourns.

FHCA expects arbitration will be addressed again by the 111th Congress. Below is information regarding our position on this issue.

• H.R. 6126 would prohibit the use and enforcement of pre-dispute arbitration agreements in all long term care settings - including nursing homes and assisted living.
• FHCA supports the use of arbitration because unlike traditional litigation, our members have experienced that arbitration is more efficient, less adversarial, and has a reduced time to settlement.
• The bill needlessly discriminates against long term care providers and more importantly patients and residents by eliminating their federal right to agree to arbitrate future disputes.
• Pre-admission arbitration clauses not only allow facility staff to better concentrate their time and effort on caring for patients and residents, but also better ensures that scarce Medicaid resources go toward improving patient care - and are not diverted to pay the escalating costs associated with lawsuits.
• Pre-dispute arbitration agreements are a viable legal option for long term care consumers and providers, and their use should not be eliminated by misguided policies.
• If the legislation were to become law, even residents who voluntarily chose to submit to pre-dispute arbitration would have that right to choose denied, a right that is not denied in any other consumer transaction.

In July, FHCA past president and nursing facility owner operator Kelley Rice-Schild, testified on behalf of AHCA/NCAL before a joint hearing of the Senate Aging and Judiciary Committees, stating, "We believe that the recently introduced Fairness in Nursing Home Arbitration Act of 2008 (H.R. 6126 and S. 2838) is a misguided attempt to restrict and weaken the Federal Arbitration Act (FAA). We firmly believe this legislation and other efforts to undermine the FAA are bad public policy and a step in the wrong direction." To view Ms. Rice-Schild's testimony, click here.

For more information, contact Peggy Rigsby at FHCA at (800) 771-3422 or via e-mail at .(JavaScript must be enabled to view this email address).