Richard J. Mollot, Executive Director
Long Term Care Community Coalition
SUBMIT YOUR COMMENTS HERE:
Here are mine.:
As an attorney with an elder law practice who is married to a woman who ran nursing home regulation in two states, I can say with absolute confidence that the most important thing you could do to benefit elders who are facing the need to enter long-term care facilities is PROHIBIT any predispute arbitration clauses in these facilities.
In the long-term care setting, predispute arbitration clauses are always substantively unconscionable, but they are also extracted from prospective residents in ways that make them procedurally unconscionable as well.
First, all elders are entering a long-term care facility under duress. There's simply no market for life in a long-term care facility except among those forced into them by chance and circumstance -- duress, in other words.
Second, everyone forced to enter a long-term care facility is suffering tremendous losses -- of their homes, friends, possessions, and often while still mourning the loss of a life partner. Depression is epidemic among those entering these facilities, and we know that depression impairs cognitive function. This is on top of the impairments that plague the pool of people entering long-term care facilities anyway.
Third, there is every reason to doubt that any resident makes a knowing, intelligent or voluntary waiver of their right to bring their disputes with the long-term care facility operator before a jury. Most of the people admitted to these facilities are completely unaware that the courts have allowed corporations to privatize the justice system to ensure that their misdeeds are kept hidden from the public. We have recently seen studies of young, healthy adults who were tested to see if they understood the arbitration clauses they had signed, and the overwhelming majority did not understand them and were often surprised to know that they had signed them. If this is true for young, healthy folks, it is 1000 times more true for elders and the physically challenged.