Congress shouldn't add to nursing home industry's financial burden
Tuesday, June 24, 2008 1:00 AM PDT
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E-mail this articleJune 24 Daily News editorial
The nursing home industry has been struggling financially for at least a couple of decades. With Medicaid reimbursement rates lagging well behind the cost of providing long-term care, those facilities with high numbers of public-pay patients are increasingly hard-pressed to keep their doors open.
Legislation now pending in Congress has a potential to worsen the industry’s financial squeeze. A bill introduced recently in the Senate by Florida Republican Mel Martinez would make voluntary binding arbitration agreements between patients’ families and care facilities unenforceable. This could greatly increase legal costs for care providers over the long haul, with little or no benefit to patients with legitimate injury claims.
Voluntary binding arbitration expedites claims. The speedier process is less expensive for both parties than a lengthy lawsuit with the possibility of endless appeals. All applicable federal, state and county laws are followed and the parties often negotiate certain rules for the case. Binding arbitration is a fair and sensible way to resolve claims.
A University of Kansas law professor, Stephen Ware, cautioned members of Congress not to ban the use of this process, according to Associated Press writer Kevin Freking. In written testimony last week to a Senate committee looking into the use of binding arbitration, Ware said that lower legal expenses can serve to increase access to justice, particularly in small cases where it can be difficult to hire an attorney. Additionally, Ware said lower legal costs benefit others, noting that nursing home costs are ultimately paid by the patients and their families, or by taxpayers.
Critics of voluntary arbitration agreements say that families shouldn’t be asked to consider the agreement upon entering a nursing home. It’s too stressful of a time, they contend. It is a stressful time, no doubt. But families may contest any agreement they signed. The federal Arbitration Act allows judges to review the agreements and invalidate those deemed to be unconscionable. Ware wrote that “this is not just a theoretical protection. Each year, there are many cases in which courts hold particular arbitration agreements unconscionable. Among these,” he added, “are cases involving nursing homes.”
Making agreements signed before a legal claim is brought unenforceable does not amount to an outright ban on binding arbitration. But it almost certainly would result in less use of this process, which would mean higher costs for providers and patients alike. Any congressional action that adds unnecessarily to this industry’s financial burden is to be avoided. That is particularly true at this critical time. With the baby boom population nearing retirement, the demand for long-term care is set to expand dramatically.
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