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A special joint meeting of the U.S. Senate Judiciary and U.S. Aging Committee met this morning to discuss the issue of mandatory arbitration. The specific issue at hand was S. 2838, the Fairness in Nursing Home Arbitration Act. Sponsored by Sen. Mel Martinez, R-Fla., and Sen. Herb Kohl, D-Wis., chairman of the Senate Aging Committee, the bill strives to eliminate the practice by nursing homes of requiring residents and/or their families sign arbitration agreements as a condition of admission to the facility.

This practice, Sen. Martinez said, takes advantage of the nation’s most vulnerable citizens, many of whom do not realize that by signing an arbitration agreement they are giving away their future rights to go to court.

Senators Martinez and Kohl pointed out that when patients and their families are at the point of entering a nursing home facility, the patient is often in need of immediate care. They are put in the position of “take it or leave it” when it comes to signing the agreement. In many cases, there are no alternative facilities nearby, and families feel forced to comply, they said.

Sen. Orrin Hatch, R-Utah, spoke in opposition of the bill, saying that preventing nursing homes from using arbitration agreements will lead to higher long term liability costs for facility owners, which will translate to higher costs for patients, or reduction in quality of care. He feels problems can be effectively addressed by the nursing home industry.

Sen. Martinez disagrees, saying arbitration “remov[es] the one incentive the industry has to self-regulate.”

While today’s hearing specifically dealt with arbitration as it refers to nursing home operation, it has the potential for wider impact.

A webcast of the hearing is available at the U.S. Senate Special Committee on Aging web site.

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