About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

29 J. Contemp. Health L. & Pol'y 183 (2012-2013)
Ending Unfair Arbitration: Fighting against the Enforcement of Arbitration Agreements in Long-Term Care Contracts

handle is hein.journals/jchlp29 and id is 195 raw text is: ENDING UNFAIR ARBITRATION: FIGHTING AGAINST THE ENFORCEMENT OF ARBITRATION AGREEMENTS IN LONG-TERM CARE CONTRACTS* By Kelly Bagby** and Samantha Souzam AARP Foundation Litigation INTRODUCTION Although provisions requiring nursing facility residents to agree to mandatory pre-dispute arbitration are now ubiquitous, many courts have refused to enforce these provisions and have adopted a variety of legal arguments to do so. Arbitration can be expensive and biased in favor of the nursing facility. It limits access to courts, discovery, available remedies and precedential value of decisions. Oftentimes, only after a nursing facility's negligence has caused a resident severe injury or death, does the resident or family member discover that, upon admission to the nursing facility or during their stay, the resident became bound to settle disputes in arbitration, ostensibly giving up the resident's constitutional right to a jury trial. While arbitration clearly benefits the corporation operating the nursing facility, mandatory pre-dispute arbitration can be detrimental to a nursing facility resident who has been harmed by the actions or inactions of the facility. This Article will discuss the many tools litigators have to challenge the enforcement of arbitration agreements for nursing facility clients. Additionally, this article will examine proactive ways elder law attorneys can help clients avoid the enforcement of pre-dispute arbitration in the first place. Part I will provide the legal context for arbitration agreements. Part II will address the different strategies litigators have to challenge enforcement of binding arbitration agreements. * The opinions expressed in this article are those of the authors and do not reflect the official positions of AARP or AARP Foundation. Kelly Bagby is Senior Attorney at AARP Foundation Litigation. She works on quality of care and civil rights issues for nursing facility residents throughout the country. She can be reached at kbagby@aarp.org. Samantha Souza is graduating in spring 2013 from the Georgetown University Law Center's LLM Program in Taxation with a certificate in estate planning. Former AFL intern Brendan Pilver contributed mightily to the content of this article. 183

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most