I was reading today this Washington Post story about mandatory arbitration agreements in nursing home contracts. Seemed like a good piece. Then I came upon a quote, which I read at least three times before finally accepting the fact that the Post actually kept it in the story. Here it is:
Although consumers usually don’t realize it, there’s a simple way to avoid being forced into arbitration, say experts: Don’t sign the arbitration agreement. What happens if you don’t sign? Nothing, [Greg Crist, a spokesman for the American Health Care Association] says. “It’s not a condition of admission to the facility,” he says.
The article, or actually the column written by Michelle Andrews as part of a “collaboration between The Post and Kaiser Health News,” concludes: “Better yet, experts agree, is not to sign in the first place.”
On what planet? These folks have obviously never had to deal with the misfortune of trying to find a decent nursing home for a family member.
First of all, you cannot “not sign” what a nursing home is asking you to sign. Nursing homes aren’t things families leisurely shop around for like condo’s or summer vacation rentals. Usually, families are dealing with a situation where a family member is being thrown out of hospital after suffering some terrible illness or injury. If the family is lucky, they’ll quickly find a facility with a decent reputation, not too many state violations, and hopefully accepts Medicaid. (Yes, Bill Clinton was correct in his DNC convention speech: "Nearly two-thirds of Medicaid is spent on nursing home care for Medicare seniors who are eligible for Medicaid.") If you refuse to submit to a nursing home's terms, good luck getting in.
Second, the article gives the impression that if an arbitration clause is buried in the admission papers (which you’ve unwittingly signed) and then some horrifying thing happens to your loved one, you can sue the nursing home and the judge will find the arbitration clause “unconscionable” and throw it out. Again, on what planet? Even the U.S. Supreme Court has spoken on this topic and how do I put it: They don’t care! In fact, a few years ago, the Court ruled that it was OK for the arbitrators themselves to decide if their own unconscionable system was fair.
The article does correctly point out at least some of the problems families face by being forced to sign unethical pre-dispute (and pre-treatment) mandatory binding arbitration clauses. Writes Ms. Andrews,
Agreeing to arbitrate is generally not in families’ best interests, say consumer advocates. For one thing, it can be pricey. In addition to hiring a lawyer, the patient or family generally has to pay its share of the arbitrator’s fee, which may come to hundreds of dollars an hour, says Paul Bland, a senior attorney at Public Justice, a public interest law firm based in Washington. “In court, you don’t have to pay the judge,” he says. “Our taxes pay for that.”
Court proceedings are also conducted in a public courtroom and leave a detailed public record that can inform industry practice and help develop case law, say experts. Not so with arbitration hearings, which are conducted in private and whose proceedings and materials are often protected by confidentiality rules.
The amount awarded — if any — may also be less if an arbitrator hears the case than it would be if a case went to trial, say experts.
There are many additional severe problems with mandatory arbitration clauses, which you can find here, here and specifically with regard to nursing homes, here. You can learn even more by watching the HBO documentary film, Hot Coffee (now available on DVD, Netflix and iTunes!)
Finally, a note for Greg Crist. Mr. Crist, you appear to be a fairly young man. Probably haven’t had to face these monumental family issues yet. I’m sure you’ll figure it out someday.
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