Long-term care advocacy group cheers executive order barring arbitration agreements, urges further action

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A prominent long-term care consumer advocacy group hailed a recent executive order banning certain government contractors from using arbitration agreements, saying this is a step toward eliminating these agreements in nursing homes and assisted living facilities.

The executive order does not apply to long-term care providers, as Medicare and Medicaid providers are not considered federal contractors under "long-standing policy," the American Health Care Association/National Center for Assisted Living emphasized.* However, the National Consumer Voice for Quality Long-Term Care seized on the action from the White House to press a case against arbitration agreements in long-term care.

Parties to an arbitration agreement are obligated to settle any future disputes through an arbitration process rather than in a court of law. Under the “Fair Pay and Safe Workplaces”executive order, announced July 31, government contractors and subcontractors with contracts of at least $1 million will not be able to have workers sign agreements to arbitrate sexual harassment and civil rights complaints.

“The [order] issued by President Obama is an important call to action for Congress and the Administration to address the widespread use of forced, pre-dispute arbitration clauses within all contracts but, in particular, the harmful and all-too-common inclusion of such clauses within long-term care admissions agreements,” stated Robyn Grant, director of public policy and advocacy at the National Consumer Voice for Quality Long-Term Care.

Long-term care facilities increasingly have been using arbitration agreements, often requiring potential residents to sign them as a condition of admission, Consumer Voice noted in a statement released Friday. The advocacy organization said that agreements might be “buried within the fine print” of admissions documents, and that consumers with no other options for care essentially have no choice but to sign such agreements.

Enforcement of nursing home arbitration agreements has sparked controversy and legal actions, many of which involve family members pursuing wrongful death claims against providers. Courts have been split on whether these family members are bound by arbitration agreements, but the Supreme Court so far has not taken up the question.

Editor's Note: The original version of this article has been updated with this statement from an AHCA/NCAL email to McKnight's.
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