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44–741 PDF 2008

S. HRG. 110–618 

S. 2838, THE FAIRNESS IN NURSING HOME 

ARBITRATION ACT 

JOINT HEARING 

BEFORE THE

SUBCOMMITTEE ON ANTITRUST, 

COMPETITION POLICY AND CONSUMER RIGHTS 

OF THE

COMMITTEE ON THE JUDICIARY 

AND

SPECIAL COMMITTEE ON AGING 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

JUNE 18, 2008 

Serial No. J–110–101 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

STEPHANIE A. MIDDLETON, Republican Staff Director 

NICHOLAS A. ROSSI, Republican Chief Counsel 

SUBCOMMITTEE ON ANTITRUST, COMPETITION POLICY AND CONSUMER RIGHTS

HERB KOHL, Wisconsin, Chairman 

PATRICK J. LEAHY, Vermont 

JOSEPH R. BIDEN, JR., Delaware 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

BENJAMIN L. CARDIN, Maryland 

ORRIN G. HATCH, Utah 

ARLEN SPECTER, Pennsylvania 

CHARLES E. GRASSLEY, Iowa 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

JEFFREY MILLER, Chief Counsel 

WILLIAM CASTLE, Republican Chief Counsel 

SPECIAL COMMITTEE ON AGING 

HERB KOHL, Wisconsin, Chairman 

RON WYDEN, Oregon 

BLANCHE L. LINCOLN, Arkansas 

EVAN BAYH, Indiana 

THOMAS R. CARPER, Delaware 

BILL NELSON, Florida 

HILLARY RODHAM CLINTON, New York 

KEN SALAZAR, Colorado 

ROBERT P. CASEY, JR., Pennsylvania 

CLAIRE MCCASKILL, Missouri 

SHELDON WHITEHOUSE, Rhode Island 

GORDON H. SMITH, Oregon 

RICHARD C. SHELBY, Alabama 

SUSAN M. COLLINS, Maine 

MEL MARTINEZ, Florida 

LARRY E. CRAIG, Idaho 

ELIZABETH DOLE, North Carolina 

NORM COLEMAN, Minnesota 

DAVID VITTER, Louisiana 

BOB CORKER, Tennessee 

ARLEN SPECTER, Pennsylvania 

DEBRA WHITMAN, Staff Director 

CATHERINE FINLEY, Republican Staff Director 

(III) 

C O N T E N T S 

STATEMENTS OF MEMBERS OF THE COMMITTEES 

Page 

Casey, Hon. Robert P., Jr., U.S. Senator from the State of Pennsylvania, 

prepared statement .............................................................................................. 74 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 17 

prepared statement .......................................................................................... 84 

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 2 

Kohl, Hon. Herb, a U.S. Senator from the State of Wisconsin ............................ 1 

prepared statement .......................................................................................... 90 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 97 

Martinez, Hon. Mel, a U.S. Senator from the State of Florida ............................ 3 

Smith, Gordon H., a U.S. Senator from the State of Oregon, prepared statement ...................................................................................................................... 111 

WITNESSES 

Connor, Kenneth L., Esq., Wilkes & McHugh, PA, Washington, D.C. ................ 11 

Hirschel, Alison E., President, National Consumer Voice for Quality Long 

Term Care, Washington, D.C. ............................................................................. 7 

Kurth, David W., Burlington, Wisconsin ............................................................... 5 

Rice-Schild, Kelley C., Executive Director, Floridean Nursing and Rehabilitation Center, Miami, Florida ................................................................................ 9 

Ware, Stephen J., Professor of Law, University of Kansas, Lawrence, Kansas . 12 

QUESTIONS AND ANSWERS 

Responses of Kenneth L. Connor to questions submitted by Senators Kohl 

and Feingold ......................................................................................................... 26 

Responses of Alison Hirschel to questions submitted by Senators Kohl and 

Feingold ................................................................................................................ 34 

Responses of Kelley C. Rice-Schild to questions submitted by Senators Kohl 

and Feingold ......................................................................................................... 37 

Responses of Stephen J. Ware to questions submitted by Senators Kohl and 

Feingold ................................................................................................................ 39 

SUBMISSIONS FOR THE RECORD 

American Association of Homes and Services for the Aging (AAHSA), Washington, D.C., statement ........................................................................................ 48 

AARP, Washington, D.C., statement and letters .................................................. 50 

Alzheimer’s Association, Washington, D.C., statement and letter ...................... 66 

Bill S. 2838 ............................................................................................................... 69 

Center for Medicare Advocacy, Inc., Toby S. Edelman, Senior Policy Attorney, 

Washington, D.C., statement .............................................................................. 76 

Connor, Kenneth L., Esq., Wilkes & McHugh, PA, Washington, D.C., statement ...................................................................................................................... 81 

Hirschel, Alison E., President, National Consumer Voice for Quality Long 

Term Care, Washington, D.C., statement and attachment .............................. 85 

Kurth, David W., Burlington, Wisconsin, statement ............................................ 92 

National Senior Citizens Law Center, Eric M. Carlson, Director, Long-Term 

Care Project, Los Angeles, California, letter ..................................................... 99 

Public Citizen, David J. Arkush, Director, Washington, D.C., letter .................. 100 

Rice-Schild, Kelley C., Executive Director, Floridean Nursing and Rehabilitation Center, Miami, Florida, statement ............................................................. 103 

Page

IV 

Tripp, Lisa C., Assistant Professor, John Marshall Law School, Atlanta, Georgia, statement and attachment ........................................................................... 114 

Ware, Stephen J., Professor of Law, University of Kansas, Lawrence, Kansas, 

statement .............................................................................................................. 127 

Wisconsin Health Care Association (WHCA), Thomas P. Moore, Executive 

Director, Madison, Wisconsin, statement and attachments ............................. 132 

(1) 

S. 2838, THE FAIRNESS IN NURSING HOME 

ARBITRATION ACT 

WEDNESDAY, JUNE 18, 2008 

UNITED STATES SENATE, 

SUBCOMMITTEE ON ANTITRUST, COMPETITION POLICY AND

CONSUMER RIGHTS, OF THE

COMMITTEE ON THE JUDICIARY, 

AND THE SPECIAL COMMITTEE ON AGING, 

Washington, D.C. 

The Subcommittees met, pursuant to notice, at 10:30 a.m., in 

room SD–226, Dirksen Senate Office Building, Hon. Herb Kohl, 

Chairman of the Subcommittee, presiding. 

Present: Senators Kohl, Feingold, Salazar, Hatch, and Martinez. 

OPENING STATEMENT OF HON. HERB KOHL, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Chairman KOHL. We will call this hearing to order and proceed. 

Today we are here to examine arbitration agreements in nursing 

home admissions contracts. We are conducting a joint hearing with 

both the Judiciary and the Aging Committees because the issue involves access to justice as it relates to the 1.5 million Americans 

currently in long-term care facilities and all those who may someday need this kind of care. 

Over the past several years, more and more long-term facilities 

have required incoming residents to sign mandatory arbitration 

agreements. By signing these agreements, residents give up their 

right to go to court. It is important to note that we believe the vast 

majority of nursing homes are doing a very good job and working 

hard to deliver quality care. But we must protect the rights of 

those who receive inadequate care to hold poor-performing facilities 

publicly accountable. 

As we will hear today, Mr. Kurth and his family want to protect 

others from the tragedy they have suffered and to send a strong 

message to underperforming facilities that harmful care is not acceptable. The experience of placing a family member in a long-term 

care facility is very emotional. Often the decision is the last resort 

after a medical emergency or when a family acknowledges that 

they cannot provide the level of care their loved one needs. 

The family’s sole focus is on finding the best facility, not studying 

technical legal clauses buried in the document. Many incoming 

residents lack the capacity to make even simple decisions, much 

less judge the legal significance of an arbitration agreement. Most 

are unaware that they are signing away their right to go to court. 

Typically, admissions agreements are presented on a take-it-orVerDate Aug 31 2005 11:01 Nov 26, 2008 Jkt 044741 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\44741.TXT SJUD1 PsN: CMORC
2 

leave-it basis. Residents have few choices because they require immediate admission or because there are no other facilities in the 

area. And as a result, whether or not they understand the arbitration provision, they all feel compelled to sign in order to ensure 

that their loved one will be admitted. 

In response to these concerns, Senator Martinez and I have introduced a narrowly targeted bill which would invalidate mandatory arbitration agreements in long-term care facility contracts. It 

is important to note that our bill does not preclude arbitration as 

an option for resolving disputes. 

As proponents of arbitration emphasize and with whom I agree, 

arbitration can be a timely, efficient, and less adversarial option for 

resolving disputes and going to court. However, it is critical that 

the decision to use arbitration be made voluntarily by both parties 

and only after a dispute occurs. It is only fair that families and 

residents have the opportunity to make an informed decision based 

on the facts of their particular case. After the dispute, if both parties feel that arbitration will truly offer a fair shake, as its proponents argue, then they should be free to agree to it at that time. 

[The prepared statement of Senator Kohl appears as a submission for the record.] 

We will now turn to the Ranking Member of the Subcommittee, 

Senator Hatch, for any comments he may have. 

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 

THE STATE OF UTAH 

Senator HATCH. Thank you, Mr. Chairman. It is always a pleasure to be with you, and I appreciate the important work that you, 

Mr. Chairman, and Senator Martinez have dedicated to this issue. 

Your intentions are noble, and I agree that it is vital that we ensure that our Nation’s seniors receive proper medical and nursing 

home care. Unfortunately, I do not believe that S. 2838 meets our 

common goal of controlling costs which is required to sustain an 

appropriate and professional level of nursing home care for our 

growing senior population. 

Mr. Chairman, as you well know, our Nation faces a crisis. Outof-control health care costs are the single most significant fiscal 

issue facing our Nation. In fact, I consider four major issues—Medicaid, Medicare, Social Security, and energy—to be the issues of the 

next 5 to 10 years that are going to make or break our Nation, and 

we have got to solve these problems. We have to eliminate waste 

and needless costs whenever possible. 

The numbers confronting us are truly staggering. The Department of Health and Human Services’ Centers for Medicare and 

Medicaid Services estimate that as a percentage of gross domestic 

product, health care spending will increase from 16.3 percent in 

2007 to 19.5 percent in 2017. In other words, in the next 10 years, 

health care costs will increase faster than our Nation’s GDP by at 

least 1.9 percent a year. That means by 2017 our Nation will spend 

$4.3 trillion a year on health care. To place this sum in the proper 

context, $4.3 trillion was the approximate size of Japan’s entire 

economy in 2007. To me, the bottom line is this: If we do not curtail costs, we could very well bankrupt our Nation. And given this 

historic challenge, we should take care before advancing any legisVerDate Aug 31 2005 11:01 Nov 26, 2008 Jkt 044741 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\44741.TXT SJUD1 PsN: CMORC
3 

lation that would unduly increase costs and undermine access to 

affordable care. Unfortunately, I believe that will be the unexpected consequence of this legislation. But I have got an open 

mind, and I am certainly going to listen. 

Arbitration clauses were not capriciously added to nursing home 

contracts. According to a report by Aon Global Risk Consulting titled ‘‘Long Term Care 2008 General Liability and Professional Liability,’’ nursing home liability costs exploded in the late 1990s. In 

those States that enacted tort reform, long-term care liability costs 

plummeted. Regrettably, most States have not enacted these reforms. Yet the report also concludes long-term health costs have 

begun to ‘‘level’’ in non-reforming States, in part because of arbitration clauses. 

Now, this is a promising development. I believe that S. 2838 will 

relinquish these initial gains, and I fear that small business owners will be unable to afford or obtain additional liability insurance. 

As a result, many of them will be forced out of business. 

I also have trepidation that it will be the less-well-off seniors 

who will be unable to afford the resulting increases in nursing care 

prices, and as a consequence, their care will needlessly suffer. Both 

of these avoidable prospects will be caused by the elimination of arbitration clauses, in my opinion. 

Let me be clear. I am deeply concerned about nursing home 

abuse. The violation of a patient’s trust just cannot be tolerated. I 

have read the Government Accountability Office report that you requested, Mr. Chairman, and I was struck by its conclusions. This 

report stated that there are serious deficiencies in nursing home 

care which are not being adequately reported to the Federal agencies responsible for monitoring Medicare and Medicaid patient care. 

And while I agree that these problems need to be addressed, I believe we should also acknowledge the important initiatives 

launched by the nursing home industry. These initiatives have 

made great strides in ensuring that a professional level of care is 

maintained at all nursing homes. 

Now, Mr. Chairman, as I stated at the beginning of my remarks, 

I deeply appreciate the leadership that you and Senator Martinez 

have shown on this issue. However, I must admit that I have serious concerns with this legislation due to my belief that it will not 

achieve our common goal of controlling costs that will enable us to 

sustain an appropriate level of nursing home care for our growing 

senior population. And these are matters that we just have to work 

through and hopefully resolve, and hopefully I can be of assistance 

to you in getting it resolved in the right way, because I have—I 

think we have the same goals in mind. We have the same hopes 

that we can get this system so it works better than it does today. 

I appreciate you doing this, and as usual, it is always a pleasure 

to work with you. 

Chairman KOHL. Thank you very much, Senator Hatch. 

Senator Martinez? 

STATEMENT OF HON. MEL MARTINEZ, A U.S. SENATOR FROM 

THE STATE OF FLORIDA 

Senator MARTINEZ. Thank you very much, Mr. Chairman. I am 

delighted to be here with you this morning. I thank you for calling 

4 

this important hearing, and we are here today to consider whether 

nursing homes should be able to require their patients to sign away 

their right to a jury trial as a condition of admittance to a facility. 

And while I believe arbitration is a valid way to settle business and 

financial disputes, it should be a completely voluntary process 

where both parties have a reasonable opportunity to understand 

the benefits and the consequences of agreeing to arbitrate future 

disputes. 

As a practicing attorney for many years, I had the opportunity 

on many occasions to participate in arbitration proceedings. And 

like the Chairman, I believe that alternative dispute resolution is 

a very legitimate way to resolve disputes, but it particularly should 

be limited and should apply in the intent of what the Arbitration 

Act was intended to do, which is with people in similar positions 

when they are entering into the decision to arbitrate. It is clear to 

me, however, that prospective nursing home residents, one of our 

Nation’s most vulnerable populations, should not be forced to decide the forum for resolving their potential claims as a condition of 

admittance to a nursing home. Allowing pre-dispute arbitration 

agreements for resolving future nursing home disputes forces patients and their families to choose between quality care and foregoing their rights within the judicial system. That is hardly a free 

and voluntary choice, and it is well beyond the original intent of 

our arbitration laws. 

The Federal Arbitration Act of 1925 was originally enacted to 

provide parties an alternative forum for voluntarily and efficiently 

resolving potential business disputes. But more and more frequently, nursing homes are requiring patients to agree to arbitration as the sole vehicle for dispute resolution before patients actually take residence in the facility. I believe this is an unwarranted 

expansion of binding arbitration, and if after a dispute or claim 

arises both the patient and the nursing home freely were to decide 

to arbitrate their case, then this legislation would allow that as 

well. So that decision to arbitrate is clearly voluntary and may be 

the best way to resolve a particular dispute. 

Some in the arbitration industry themselves feel that included in 

this is the American Arbitration Association, one of the country’s 

largest forums, generally refused cases over nursing home care 

where the patient was forced to sign a pre-dispute arbitration 

agreement prior to admittance. They recognize the vulnerability of 

nursing home residents and their families at the time of admission 

when they are most vulnerable, when they are most distraught, 

when they are most concerned, and that is not a time when we 

should be asking them to make a legal decision that they would 

knowingly make at that time to bind themselves to only arbitration 

as their sole remedy. 

Nursing home disputes often involve allegations of neglect and of 

abuse, and, unfortunately, the prospects of patients and their families being able to file a complaint in the civil justice system may 

be the only way of holding nursing homes accountable. I believe it 

is a way of forcing the industry to regulate itself because we do 

know that their care falls in too many instances below the level of 

care that we would all want to see in that industry. So the fact of 

the matter is what we are doing here is removing the one incentive 

5 

that the industry has to self-regulate and to police itself and to provide a level of care that I believe is what all of us would like to 

see for this very vulnerable group of American citizens. 

What Senator Kohl and I have proposed in our legislation is to 

restore the Federal Arbitration Act to its original intent by requiring that agreements to arbitrate nursing home disputes be made 

after the dispute has actually arisen. S. 2838, the Fairness in 

Nursing Home Arbitration Act of 2008, will help to ensure that arbitration is a voluntary process for both parties involved and not 

a coerced forum to resolve disputes. Every American deserves equal 

protection under the law and the right to seek legal recourse when 

they are harmed by others, and I really do believe that this bill 

goes a long way in helping to maintain that balance between the 

vulnerable population of nursing home patients and the big businesses that run the nursing homes. 

Thank you, Mr. Chairman. 

Chairman KOHL. Thank you, Senator Martinez. 

We turn now to our panel of witnesses. Our first witness will be 

David Kurth. Mr. Kurth is from Burlington, Wisconsin, and is an 

engineering project manager at MedPlast in Elkhorn, Wisconsin. 

Mr. Kurth is here to discuss his family’s experience with nursing 

home arbitration agreements. 

Our next witness will be Alison Hirschel. Ms. Hirschel is the 

President of the National Consumer Voice for Quality Long-Term 

Care, a grass-roots advocacy group. Ms. Hirschel is also the elder 

law attorney at the Michigan Poverty Law Program. 

Next we will be hearing from Kelley Rice-Schild. Ms. Rice-Schild 

is the owner and executive director of Floridean Nursing Home in 

Miami, Florida. Floridean is a family-owned long-term care facility 

with 60 residents. Ms. Rice-Schild is here representing the American Health Care Association and the National Center for Assisted 

Living. 

Our next witness will be Kenneth Connor. Mr. Connor is an attorney at Wilkes & McHugh, a civil litigation law firm where he 

specializes in cases involving nursing home abuse and neglect. 

The final witness will be Stephen Ware. Mr. Ware is a professor 

at the University of Kansas Law School where he specializes in arbitration. 

We thank you all for appearing at our Subcommittee’s hearing 

today, and if you will all now stand and raise your right hand and 

take the oath. Do you affirm that the testimony you are about to 

give before this Committee will be the truth, the whole truth, and 

nothing but the truth, so help you God? 

Mr. KURTH. I do. 

Ms. HIRSCHEL. I do. 

Ms. RICE-SCHILD. I do. 

Mr. CONNOR. I do. 

Mr. WARE. I do. 

Chairman KOHL. Thank you so much. 

Mr. Kurth, we will take your testimony. 

STATEMENT OF DAVID W. KURTH, BURLINGTON, WISCONSIN 

Mr. KURTH. Chairman Kohl, Ranking Member Hatch, and distinguished members of the Committees, thank you for the invitation 

6 

to speak to you today. I would also like to acknowledge my sister, 

Kim, and my mother, Elaine, who are both accompanying me here 

today. 

I am here to express my family’s support of S. 2838, the Fairness 

in Nursing Home Arbitration Act, and I would like to thank Senators Martinez and Kohl for introducing this bill. 

My name is David William Kurth, and my father’s name was 

William Frederick Kurth. He loved our country and served many 

years as an officer in both the United States Army and the Wisconsin National Guard. My father was an Eagle Scout, a Boy Scout 

leader, and served as a volunteer fireman for more than 25 years 

in our community. 

My father entered Mount Carmel Nursing Home in October of 

2004. In February, he fell and broke his hip and had to spend several days in the Burlington Hospital having his hip repaired. 

Shortly after returning to Mount Carmel Nursing Home, his left 

leg was broken again during physical therapy that was improperly 

applied. My mother said that the therapist insisted that my father’s leg must be fully straightened. My mother said also that my 

father was screaming in pain and trying his best to resist their efforts. Yet they did not listen, and as a result, they broke his leg. 

It was at this same time he contracted MRSA infection. Also during this time, his health care coverage was changed from Medicare 

to Medicaid. The very day his coverage changed, he was moved 

from his private room in the Medicare wing to a shared room in 

the Medicaid wing of the nursing facility. His new room was filthy 

and smelled of feces. The bed he was placed in was coated with 

dirt. My wife and I had to clean his room and his bed. The bathroom he shared with three other men had not been properly 

cleaned in weeks, possibly months. 

On one occasion, I found the room to reek of feces. There was a 

rag with feces next to my father’s face on his feeding table. His 

clean clothes were on the floor intermingled with several changes 

of soiled sheets. Even though my father had contracted the MRSA 

infection, the staff made no attempt to protect his roommates, his 

visitors, or even their own staff from contracting this very communicable disease. 

In April, Dr. Ryan found two or three small bedsores on my father’s backside and instructed the wound care nursing team to give 

special attention to these wounds. What we did not know was that 

around this same time the management of the facility had made 

a cost-cutting move and disbanded the wound care team. What this 

meant was that the wound care for over 150 patients that had previously been done by a team of people was now to be attended by 

only one nurse. Records show that this sole wound care nurse 

never attended to my father’s wounds during the months of April 

or May, even after it was brought to her attention by the visiting 

doctor. 

After examining my father again prior to Memorial Day, the doctor immediately rushed my father to the emergency room. The doctor told us how shocked he was at the poor care my father had received. He had also told us that my father was terminally ill and 

that he did not have much chance of surviving his infections. My 

father died on June 25, 2005, from sepsis of the blood due to infecVerDate Aug 31 2005 11:01 Nov 26, 2008 Jkt 044741 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\44741.TXT SJUD1 PsN: CMORC
7 

tions caused by approximately 13 bedsores. Most of these bedsores 

ran deep into the bones of his hips and pelvis. The infections were 

caused by the excrement and urine that was not properly cleansed 

from the wounds for days at a time. The bedsores were caused by 

neglect. 

The wound care nurse that was responsible for caring for my father has been charged and found guilty of criminal neglect by the 

State of Wisconsin for her actions. 

On the day of my father’s memorial service, a Kindred representative contacted me to express her concerns for the way my father 

suffered and said they felt responsible and wanted to pay for my 

father’s funeral expenses. I declined her offer. 

To make matters worse, the parent corporation of the nursing 

home is hiding behind a mandatory arbitration clause to prevent 

the light of truth from being shed on their corrupt management 

policies. 

How can anyone in good conscience argue that it should be perfectly legal to trick frail, elderly, infirm senior citizens during the 

most stressful time in their lives into waiving their legal rights? 

My sister and I and my mother are here today to plead with you 

to help right a great wrong that is being perpetrated on the elderly 

of America. It is by God Almighty’s hand that you have come to 

your position this day for such a time as this. Please do not let my 

father’s story be allowed to happen to another innocent American. 

Thank you for your time. 

[The prepared statement of Mr. Kurth appears as a submission 

for the record.] 

Chairman KOHL. Thank you very much, Mr. Kurth. 

Ms. Alison Hirschel. 

STATEMENT OF ALISON E. HIRSCHEL, PRESIDENT, NATIONAL 

CONSUMER VOICE FOR QUALITY LONG TERM CARE, EAST 

LANSING, MICHIGAN 

Ms. HIRSCHEL. Good morning, Chairman Kohl, Ranking Member 

Hatch, and Senators Martinez and Feingold. Thank you very much 

for inviting me to speak on behalf of NCCNHR, the National Consumer Voice for Quality Long Term Care, and thank you, Senators 

Kohl and Martinez, for introducing this important legislation. I am 

delighted to note that Lynn Miller, a nursing home resident who 

is on the NCCNHR Board, is with us today here in the front row. 

For the past 23 years, I have advised long-term care consumers 

about their rights and options, and I know that residents and families often sign admissions agreements at a time of great stress in 

their lives, and they do when decisions need to be made in a hurry. 

Most consumers do not notice that there is a mandatory arbitration 

provision in the contract they are signing, and if they do, they 

might not understand them. They probably do not know that under 

these provisions, the facility chooses the arbitrator. They do not understand that arbitration can be very costly for consumers, that arbitration awards are generally significantly lower than jury 

awards, and that there is no appeal. And the last thing on most 

consumers’ minds is how they will seek a remedy if something goes 

wrong. They enter a long-term care facility seeking care and compassion, not litigation or arbitration. 

8 

Even if consumers understand the arbitration clause, they will 

not challenge it. First, this is not a negotiation between two equal 

parties. Consumers sign whatever they need to sign to get their 

family member into a facility. Second, nobody wants to be considered a troublemaker before they have even entered the facility, and 

to put the life of a vulnerable resident in the hands of someone who 

might already be annoyed at them. And they especially do not want 

to be a troublemaker about a clause in the contract that they do 

not think will ever affect them. 

But, of course, sometimes things do go grievously wrong. For example, Vunies B. High was a 92-year-old Detroit area resident with 

dementia. She happened to be the sister of the legendary boxer Joe 

Louis. She was a graduate of Howard University and a very accomplished woman and a long-time teacher. Ms. High’s family placed 

her in an assisted living facility because they thought that she 

would be safe there. On a frigid night this past February. the staff 

failed to notice when Ms. High wandered out of the facility wearing 

only her pajamas. She froze to death right outside her door. Her 

family then discovered that the admissions agreement they signed 

contained a mandatory, binding arbitration provision that stated 

that the provider had the sole and unfettered option to choose to 

resolve the dispute in arbitration; the provider would choose the location, and presumably the arbitrator; the provider would choose 

the rules; and the provider retained its right to go to court if it had 

any dispute against Ms. High, though Ms. High was required to 

give up her right to go to court if she had a dispute against them. 

Because of this agreement, Ms. High’s family may not have an 

opportunity to seek redress in the courts for her tragic and preventable death. This is troubling because the potential for litigation 

provides an important incentive for facilities to provide better care. 

It is a way for individuals who really have been wronged in sometimes harrowing ways to hold providers accountable. And it is a 

method for ensuring, in contrast to arbitration, that these abuses 

are brought to light. 

At the same time we are seeing more mandatory arbitration 

clauses, Government studies continue to provide disturbing evidence that our enforcement system is not working well. As Senator 

Grassley remarked in 2007, ‘‘The enforcement system is broken.’’ In 

my own State, complaints take an average of 90 days to investigate, and sometimes as long as a year. In that time, all evidence 

disappears, and it is impossible to substantiate even the most serious and legitimate complaints. And if you cannot substantiate 

them, you cannot impose a penalty. 

Licensed assisted living facilities in my State are inspected less 

often, less rigorously, and inspectors have even fewer tools if problems are discovered. And there is no enforcement at all in unlicensed facilities like the one in which Ms. High’s family unwittingly placed her. So enforcement cannot be an adequate substitute 

for litigation in really egregious cases. 

I know that opponents of this bill lament that funds that should 

be spent on resident care are diverted to pay for litigation and liability insurance. But I want to be clear about three important 

points: 

9 

First, what really costs taxpayers unfathomable amounts of 

money is poor care itself. For example, when a Wisconsin nursing 

home ignored for more than 5 days Glen Macaux’s doctor’s orders 

to inspect his surgical site, the resulting infection caused septic 

shock, excruciating pain, severe depression, and total disability, 

and hospital bills of almost $200,000. And this is replicated over 

and over across the country. 

Second, even if providers were spared the expense of litigation 

and high insurance premiums, there is no guarantee that they 

would put that money into improving residents’ lives. 

And, finally, I want to note that anti-arbitration. We are only opposed to pre-dispute, binding, mandatory arbitration. Arbitration 

was not intended as an end run around justice or a way to keep 

wrongdoing out of the public eye. In cases in which consumers have 

already suffered grievous harm, Congress should not permit longterm care facilities to add the bitter burden of denying individuals 

their fundamental right of access to the courts. 

Thank you. 

[The prepared statement of Ms. Hirschel appears as a submission 

for the record.] 

Chairman KOHL. Thank you, Ms. Hirschel. 

Ms. Rice-Schild. 

STATEMENT OF KELLEY C. RICE-SCHILD, EXECUTIVE DIRECTOR, FLORIDEAN NURSING AND REHABILITATION CENTER, 

MIAMI, FLORIDA 

Ms. RICE-SCHILD. Thank you, Chairman Kohl, Ranking Member 

Hatch, and members of the Committee. I am grateful to have the 

opportunity to be with you here today and to offer the long-term 

care profession’s perspective on arbitration. My name is Kelley 

Rice-Schild, and I am here today on behalf of American Health 

Care Association and the National Center for Assisted Living. 

In addition to representing the long-term care industry, I am also 

here as an owner, operator, small businesswoman, and nursing 

home administrator. The Floridean in Miami was founded by my 

great-grandmother, Florence Dean, in 1944 and is a high-quality 

nursing facility that has been operated by a member of my family 

ever since. The Floridean is the oldest nursing home in Miami and 

serves as many as 60 South Floridians every day. Our mission is 

to meet and exceed the expectations of our patients and their families by providing the highest-quality care possible. 

Before I address the benefits of arbitration as an alternative to 

litigation, allow me to take a moment to assure the Committee that 

the troubling anecdotes presented today represent the exception 

rather than the rule within our long-term care community. 

I am proud of the advances our profession has made in delivering 

high-quality care, and we remain committed to sustaining these 

gains in the future when demand for care will dramatically increase. 

Data tracked by CMS clearly illustrates improvements in patient 

outcomes, increases in overall direct care staffing levels, and significant decreases in quality of care survey deficiencies in our Nation’s skilled nursing facilities. We remain committed to building 

upon these quality improvements for the future. 

10 

In the late 1990s, our profession was subject to an increasingly 

difficult legal environment. Long-term care operators were forced 

into making difficult decisions, including potential closure of facilities and corporate restructuring. In addition to pursuing tort reform, we sought alternatives to traditional litigation, including arbitration. This trend was especially true in States such as Texas, 

Arkansas, and my home State of Florida, where State laws fostered 

an exponential growth in the number of claims filed against longterm care providers, even those like mine with a history of providing the highest-quality care. 

This led to an explosion in the cost of maintaining insurance to 

protect operators from the risks associated with a tort environment 

that often encouraged unsubstantiated claims, featuring highway 

billboards and other advertising encouraging consumers to sue 

their long-term care provider. 

In 2001, tort reform legislation passed in Florida. Unfortunately, 

insurance is still not widely available and is unaffordable for most 

operators. Today in my facility, I am covered by a $25,000 general 

and professional liability policy for which I pay $37,000 a year. To 

carry more insurance would simply make my facility a target for 

litigation, despite our over 60-year history of providing nothing but 

the highest level quality of care. 

In order to serve the good steward of my family’s long-time business and to continue to operate in such an environment, I turned 

to arbitration. I was not alone. In 2002, American Health Care developed a model arbitration agreement form for possible use in admission process as a service to our member facilities and the residents they serve. This model agreement in no way alters the rights 

of remedies available to the resident under State tort law. It states 

that entering into an arbitration agreement is not a condition of 

admission to the facility. It is clearly free and voluntary. The form 

also provides a 30-day window for the resident or their representative to reconsider and rescind the arbitration agreement. 

We support the use of arbitration because, unlike traditional litigation, our experience is arbitration is more efficient, less adversarial, and has a reduced time to settlement. A recent Aon report 

found arbitration reduces the time to settlement by more than 2 

months, on average, and that very few claims actually go all the 

way to arbitration, as most claims are settled in advance. 

The Aon report also finds that 55 percent of the total amount of 

claims costs paid by the long-term profession is going to directly to 

attorneys. It is unfortunate to sensationalize this debate with anecdotes and misinformation perpetuated by high-profile trial attorneys who are the primary beneficiaries of eliminating arbitration 

and long-term care. In fact, Mr. Connor’s testimony last week before the House Judiciary Subcommittee inaccurately portrayed the 

manner in which arbitration agreements are presented to residents 

and their families upon admission. 

We believe that legislative proposals to limit arbitration and undermine the FAA is bad public policy. We strongly support the use 

of arbitration as a reasonable option to resolve legal disputes and 

aggressively oppose efforts to diminish the use of arbitration. 

Thank you for this opportunity to offer comments today. I look 

forward to your questions. 

11 

[The prepared statement of Ms. Rice-Schild appears as a submission for the record.] 

Chairman KOHL. Thank you, Ms. Rice-Schild. 

Mr. Connor? 

STATEMENT OF KENNETH L. CONNOR, ESQ., WILKES & 

MCHUGH, PA, WASHINGTON, D.C. 

Mr. CONNOR. Thank you, Senator Kohl, Ranking Member Hatch, 

Senator Martinez. I would like to thank you, Senator Kohl, and 

you, Senator Martinez, for your sponsorship of this very important 

legislation. 

Senator Hatch has rightly outlined, I think, some of the major 

crises that are facing our country. I would submit to you that we 

also have an unacknowledged crisis of care with respect to our elderly and long-term care facilities in this country. I know because 

I have seen it firsthand. I have tried cases involving abuse and neglect of nursing home residents from Florida to California. I have 

seen nursing home residents who had pressure ulcers as big as pie 

plates. Their wounds oftentimes were so putrid and foul-smelling 

that you could smell the resident walking down the hall before you 

ever entered their room and saw them. I have seen them with 

gaunt faces and hollow eyes, suffering from avoidable malnutrition, 

their tongues too parched and swollen to speak because they are 

suffering from preventable dehydration. Sometimes they are victims of sexual abuse by their caregivers or physical abuse by other 

demented patients who are not properly supervised. And most of 

the times, these problems are rooted in the failure of nursing 

homes to maintain sufficient staff to take care of their residents. 

And the reason that is the case is that labor costs are the biggest 

single item in a nursing home budget. And when you are dealing 

with a capitated system where they are paid a flat fee for the care 

of residents, the way you increase profits is by reducing costs. And 

so they short the staff, and then in our experience often falsify the 

records to reflect a false and inaccurate picture of the care that is 

being given in the nursing home. 

Now, historically, the means of redress for these kinds of injuries 

has been to resort to the courts—that is, the right to a jury trial 

that was so cherished by our forefathers that many refused to sign 

the Constitution until they agreed to secure it in the Seventh 

Amendment. 

I can tell you as a practical matter, these problems are only 

going to get worse with time. We have got an enormous age wave 

coming. We have a veritable senior tsunami on the horizon. Dr. 

Leon Kass has rightly said that we are rapidly becoming a mass 

geriatric society, even as we are facing the pressures that you, Senator Hatch, have identified in terms of the crisis in our Medicare 

and Medicaid systems. And at the same time, we are experiencing 

a shift in the cultural consensus about the way we view the elderly 

and handicapped especially. We are moving away from a sanctityof-life ethic to a quality-of-life ethic, and old people suffering from 

dementia in the nursing home do not score well using quality-oflife calculus. They do not perform well on functional capacity studies, and they cost more to maintain than they produce, and they 

are often the victims of abuse and neglect in nursing homes. 

12 

And I respectfully dispute what Ms. Rice-Schild has said. All you 

have to do is look at the briefs and memos that our office has filed 

on multiple occasions in court, along with that of others. 

You know, in any other setting if you took advantage of an elderly person whose eyes were dim and whose hearing was dull and 

who lacked mental capacity or perhaps is on medication that impaired their mental faculties, and you talk them into forfeiting important legal rights or forfeiting the important right to recover 

money for their damages, in almost any other setting, the perpetrators of that kind of conduct would be prosecuted. Yet it is an approved process in nursing homes. Nursing homes take advantage 

of frail, vulnerable residents who are mortified and terrified that 

they are about to be left by their families in an institution. The 

families themselves are stricken with grief and guilt over the fact 

that they cannot care for their loved one anymore and they have 

to turn them over. 

The last thing on their mind when they come to the nursing 

home is that they are going to be required to forfeit their legal 

rights. All they are concerned about is getting care for their mother 

or grandmother whom they know they cannot care for any longer. 

These agreements are often sandwiched at the end of a 50- or 60- 

page admitting packet. They are rarely ever explained. Oftentimes 

we find that people who explain them do not even know or understand the consequences. 

If arbitration is such a good remedy—and I would submit to you 

that arbitration can be an appropriate means of alternative dispute 

resolution, then let’s foster it after the dispute arises, not before 

the dispute arises, when the victims of abuse and neglect and their 

families do not have a clue about what they are suffering. If your 

goal is to hold wrongdoers fully accountable for the consequences 

of their wrongdoing and to see to it that innocent victims of wrongdoing are compensated fairly for what they have suffered, I would 

suggest to you you ought to support this important legislation. 

Thank you. 

[The prepared statement of Mr. Connor appears as a submission 

for the record.] 

Chairman KOHL. Thank you, Mr. Connor. 

Mr. Ware. 

STATEMENT OF STEPHEN J. WARE, PROFESSOR OF LAW, 

UNIVERSITY OF KANSAS, LAWRENCE, KANSAS 

Mr. WARE. Chairman Kohl, Ranking Member Hatch, Senator 

Martinez, members of the Committees. Thank you for having me 

here today. My name is Stephen Ware. I am a professor of law at 

the University of Kansas. I speak to you today not on behalf of my 

university, but as an individual scholar who specializes in arbitration law. I have written two books on the subject and 20 arbitration articles in scholarly journals. Within my field of arbitration 

law, I have focused on the arbitration of disputes involving ordinary individuals, and it is safe to say that for the last 15 years, 

the bulk of my professional life has been devoted to studying the 

law, economics, and policy of such arbitrations. It is based on this 

experience that I oppose S. 2838 because I believe it will tend to 

13 

harm those it aims to protect, that is, nursing home residents and 

their families. 

I have three points I want to make about arbitration. The first 

point, which Senator Kohl alluded to, is that to the extent we have 

reliable empirical evidence comparing arbitration and litigation, arbitration does tend to be a quicker, cheaper method of dispute resolution. So the savings that Senator Hatch alluded to are backed up 

by empirical data. 

That leads me to my second point, which is that advocates of this 

bill often praise arbitration and allude to those benefits of arbitration and say that while we are going to keep arbitration, we like 

arbitration, all this bill will do is ban pre-dispute arbitration agreements. That, however, sets up a false choice. If you ban pre-dispute 

arbitration agreements, you effectively end virtually all arbitration 

of this sort of dispute, and that is because parties rarely enter into 

post-dispute arbitration agreements. The vast majority of arbitration arises out of pre-dispute arbitration agreements. 

The fact that parties rarely enter into post-dispute arbitration 

agreements does not reflect badly on arbitration. What it reflects 

is the perspective the disputing parties have after a dispute arises. 

At that time, parties and their lawyers can assess a case, and they 

try to maneuver into a forum that advances the self-interest of that 

side of the case. In other words, one party may be attracted to litigation precisely because it is not as fast or as cheap as arbitration. 

That can give a strategic advantage to that side. So we rarely see 

post-dispute arbitration agreements. Enacting a bill like this, I expect, will virtually eliminate arbitration of these sorts of disputes. 

That then brings me to my third point, which is the fairness of 

arbitration. I think it is important to avoid generalizing here because there are a wide variety of arbitration agreements out there 

and a wide variety of things happening in arbitration. And here is 

where I really believe we have a sensible system under the Federal 

Arbitration Act as it stands now, with courts refusing to enforce arbitration agreements that are unfair, that would lead to an unfair 

arbitration process. So as Senator Martinez says, we all want to 

hold nursing homes accountable for their negligence. Certainly the 

sort of atrocious care Mr. Kurth described, we all want to hold 

nursing homes accountable for that sort of care. The question is: 

Will arbitration do that? And sometimes the answer is yes, sometimes the answer is no. It depends on the particular arbitration 

agreement, the particular arbitrators involved. 

So what we have now is a very sensible system in the law where 

courts decide on a case-by-case basis which arbitration agreements 

to enforce and which ones are unfair and should not be enforced. 

I think that is a better system, case-by-case adjudication of these 

fact-intensive issues, than legislation which would pain with a 

broad brush and would be overinclusive. 

Thank you very much. 

[The prepared statement of Mr. Ware appears as a submission 

for the record.] 

Chairman KOHL. Thank you, Mr. Ware. 

A question for you, Mr. Connor. Ms. Rice-Schild says that Mr. 

Kurth’s case, as we heard about it today, is ‘‘the exception and not 

the rule.’’ I would ask you how prevalent are arbitration agreeVerDate Aug 31 2005 11:01 Nov 26, 2008 Jkt 044741 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\44741.TXT SJUD1 PsN: CMORC
14 

ments in admissions contracts and how common are stories like 

Mr. Kurth’s that we heard today. 

Mr. CONNOR. Mr. Kurth’s story is all too common. There are 

many nursing homes in this country that give high-quality care, 

but Mr. Kurth’s story and the story that was outlined by Ms. 

Hirschel are very, very common. I have reviewed hundreds and 

hundreds of charts from nursing homes all over the country and 

see these systemic problems. These are not isolated problems. They 

are systemic. And we also see systemic fraud in the industry. In 

fact, in 2000, the DOJ commented at one of these hearings that 

fraud had been built into the business model of the nursing home 

industry. And I can tell you that in the ensuing time since that 

statement was made, it has been validated time and time again in 

the cases that I have been involved in where nursing homes try to 

conceal the true staffing picture and the true nature of the care 

that is being given. 

We encounter these nursing home pre-dispute arbitration agreements, I would estimate, in 60 to 70 percent of our cases, and that 

percentage is rising over time, because it is a tremendous advantage to the nursing home to enter into these agreements. These 

proceedings are often secret. They are not exposed to public opprobrium like they would be in a public trial or in the case of a public 

jury verdict. They often are able to shift the costs of arbitrating to 

the plaintiffs in this case. It often is cheaper for the defendant 

nursing homes. But at bottom, I would suggest to you, the inherent 

unfairness that arises from taking advantage of a frail, elderly person to get them to forfeit important legal rights before a dispute 

arises is just simply unconscionable and ought not to be sanctioned 

by this Congress. 

Chairman KOHL. Thank you. 

Ms. Hirschel, long-term care facilities claim that without arbitration, their costs would increase and access to quality care will decrease. I am concerned about our seniors having access to quality 

long-term care, as we all are. Will this bill, as they say, result in 

fewer facilities to care for our aging population? 

Ms. HIRSCHEL. Senator Kohl, I do not think so, and I would like 

to caution us not to equate the legitimate issue that Senator Hatch 

raised of rising health care costs across the board with the specific 

issue of consumers’ rights to go to court in truly egregious cases. 

There are lots of other ways that facilities can control costs and 

keep their doors open and provide access. 

The first thing is they can provide good care. There is no evidence of a spate of frivolous lawsuits. In fact, the Harvard study 

in 2003 showed that in more than half the cases that were filed 

against nursing homes, the resident died. So these are not—even 

defense lawyers for the industry have acknowledged that these 

cases are not frivolous. If you provide good care, you do not get 

sued for those very expensive, egregious cases. 

The second thing I think would be very interesting is to look at 

how the insurance industry sets its rates for nursing home liability 

insurance. The Center for Medicare Advocacy did a study that 

showed that those rates increase exponentially and not directly related to civil litigation costs, but to a host of other factors. And I 

think we really need to see whether those rates are truly based on 

15 

rising litigation or on other factors that are not legitimate, and 

whether the insurance companies, in fact, are bleeding profits out 

of nursing homes that should be spent on care. 

And, finally, I think we need to look at the private equity firms, 

which I know that you and Senator Grassley have looked at very 

carefully. They are bleeding resources out of facilities and putting 

profits over residents. If we ensured that the funds that should be 

spent on resident care stayed in the facility instead of in the private equity investors’ pockets, that would also allow facilities to 

continue providing quality care and keeping their doors open. 

So, in sum, I would just say that nursing homes can keep their 

doors open if they provide good care, if they have responsible corporate policies, and if we ensure that liability insurance rates are 

fair and reasonable. Thank you. 

Chairman KOHL. Thank you. 

Senator Martinez? 

Senator MARTINEZ. Thank you, Mr. Chairman. 

I want to thank all the witnesses for very compelling testimony. 

The fact is that these are difficult issues. We are talking about 

issues that are really at the heart of a cycle of life where we need 

to show the kind of care and concern that I know all of you passionately care about. 

Ms. Rice-Schild, I also want you to know that I am certain your 

establishment gives quality care. I am sure there are places where 

quality care happens. I also have faith in the judicial system to ferret out the frivolous from the legitimate. And I think at the end 

of the day, while a lawsuit might be filed, before a lawsuit ultimately comes to being a collectible verdict, that there needs to be 

a process in place that is fair to all concerned. 

I was intrigued by something you said, and I want to clarify it. 

You mentioned that in Florida we had tort reform, and I believe 

you said in 2001, I believe. But yet your insurance rates did not 

drop significantly. Is that right? 

Ms. RICE-SCHILD. No, Senator. The insurance companies, the 

major carriers, are not writing medical malpractice insurance in 

Florida. 

Senator MARTINEZ. But that was in spite of tort reform, so tort 

reform really did not alter the insurance situation. 

Ms. RICE-SCHILD. I think there needs to be a track record before 

the insurance companies will come back to the State, and slowly 

but surely we are all hoping that will happen and it will be affordable. 

Senator MARTINEZ. But at this current time, you do not find that 

there is affordable insurance in Florida? 

Ms. RICE-SCHILD. No, Senator. It is almost dollar for dollar. The 

last time that I was able to get real medical malpractice insurance 

was 1999. I had $1 million/$3 million coverage, and I paid $24,000. 

I have an almost pristine record. Then after the bottom dropped 

out, I was reduced to having to get a $25,000. Now if I wanted to 

get $1 million/$3 million—I spoke to an insurance agent just recently on my renewal—it would be close to $800,000. 

Senator MARTINEZ. So essentially tort reform did not alter the 

equation in terms of— 

Ms. RICE-SCHILD. Not yet, Senator. We are hoping that it will. 

16 

Senator MARTINEZ. Okay. And it is almost a decade, so I am 

wondering what it really is the solution that it is held out to be. 

I am sure when you were advocating for tort reform in Florida, you 

were assured that this would drop your rates, and you were probably telling legislators at the time that that would happen. And, 

unfortunately, it happens, and that is my point. 

Ms. Hirschel, in the limited time I have, let me move along. 

Folks who come into a situation and they are presented an arbitration agreement, do they get a discount? Do they pay less in any 

way? 

Ms. HIRSCHEL. No, sir, they do not. 

Senator MARTINEZ. And is it your experience— 

Ms. HIRSCHEL. Not in my experience. I am sorry to interrupt, but 

certainly not in my experience. I have not heard that. 

Senator MARTINEZ. And do you believe that people are in anyway 

informed at the time of signing of that contract as to what they are 

doing in terms of giving up their legal rights? Mr. Connor mentioned that sometimes these might be sandwiched in the back of a 

package. I took my dad to a nursing home and grabbed him out of 

there in about a week because I was appalled myself. That is just 

my own little experience. But, anyway, I remember signing a lot 

of stuff. And, frankly, as I have sat here, I wondered if I signed 

an arbitration agreement as part of that. I do not know. 

Ms. HIRSCHEL. Well, my sense is that different facilities have 

very different practices. Some do explain the process, and I know 

that some defense attorneys for nursing homes suggest that their 

facilities have a video that explains the entire process, although the 

defense lawyer whose paper I read said that none of his clients 

have chosen to do that. 

So some do and some do not. I have certainly seen the admissions contracts where those arbitration clauses are absolutely buried and use very difficult legal language. But as I said in my testimony, even in the cases where clients, where applicants understand that there is an arbitration agreement, they are afraid to ask 

to have that removed. They just want to get their family member 

in, and they do not think it is going to apply to them. 

Senator MARTINEZ. Mr. Ware, I was intrigued by your faith in a 

two-proceeding system. I understand that alternative dispute resolution is a very progressive way of resolving legal disputes, and I 

have participated in them on many occasions in different settings. 

And I think that they are appropriate. However, when you recommend that essentially there be an arbitration process and then 

it be taken before a court so that on a case-by-case basis a court 

can then decide if it was fairly entered into? I am not sure I understand that. 

Mr. WARE. No, Senator. I recommend the law as it is right now, 

the current law, which is when people agree to arbitrate, if they 

choose to arbitrate, they just go ahead and arbitrate. If one of the 

parties wants to get out of the arbitration agreement, they can go 

to court and a court assesses whether the agreement should be enforced or not. 

Senator MARTINEZ. But then that forces them into litigation. 

17 

Mr. WARE. Certainly, right. The choice to try to back out of one’s 

arbitration agreement gives you the alternative of a court to back 

you up on that and let you out of the arbitration agreement. 

Senator MARTINEZ. But do you find that when people enter into 

these arbitration agreements, particularly in nursing home settings, that they are aware of the legal rights that they are giving 

up and that they in any way have any sort of an equal bargaining 

position? I mentioned in my opening statement about my belief 

that arbitration really has its fruits in resolving business disputes 

where there is some sort of an equilibrium, if you will, in the bargaining position of the respective parties. 

Do you think that exists in this situation? And does that concern 

you? 

Mr. WARE. Well, that is, again, where I would hesitate to generalize. I mean, part of my job as a law professor is to imagine extreme cases on either side. So I can imagine extreme cases where 

people would say, yes, this arbitration agreement was fairly, voluntarily entered into, and ought to be enforced, just like I can imagine extreme cases on the other side. And then there is a lot of gray 

area in the middle where reasonable people can disagree. And that, 

again, is why I believe we have got such fact-intensive, case-bycase, issues arising here, so rather than the broad brush of litigation, this is better resolved case by case by courts looking at individual facts. 

Senator MARTINEZ. Thank you, Mr. Chairman. My time is up. 

Chairman KOHL. Thank you, Senator Martinez. 

Senator Feingold? 

STATEMENT OF RUSSELL D. FEINGOLD, A U.S. SENATOR FROM 

THE STATE OF WISCONSIN 

Senator FEINGOLD. Well, thank you, Mr. Chairman, for holding 

this hearing and for your leadership on this issue. 

I want to first welcome Mr. Kurth from Burlington, Wisconsin, 

and his family members, and express my deepest sympathy for the 

loss of your father and the ordeal you and your family have undergone. That was very powerful and, frankly, very disturbing testimony. Thanks for coming here to tell your story and to try to help 

other families. 

One of the most fundamental principles of our justice system is 

the right to take a dispute to court. I have been concerned for 

many years that mandatory arbitration clauses in all sorts of contracts that consumers and employees must sign are slowly eroding 

the legal protections that should be available to all Americans. I 

have introduced legislation to make these provisions unenforceable 

basically in all contexts because I believe they are inherently unfair, other than some of the commercial situations that Senator 

Martinez was just referring to. 

Arbitration is an important form of alternative dispute resolution, but it should never be forced on someone, particularly not on 

someone with unequal bargaining power before a dispute even 

arises. People who sign contracts to go into a long-term care facility 

are among the most vulnerable of our citizens, whether they are 

seniors or their families. They sign papers that are handed to them 

in often very difficult and emotional circumstances. They are not 

18 

represented by lawyers to review the fine print. As we have heard 

from the witnesses today, residents and their families typically 

have no opportunity to negotiate the terms of the contracts they 

sign. Often they believe or they are told the contracts are take-itor-leave-it propositions. In some cases, the facility, but not the resident, retains the right to modify the contract and even to pursue 

a collection action in court. If the dispute goes to arbitration, the 

secret proceedings often severely restrict discovery and impose limits on witnesses, experts, and information sharing. 

So I am pleased to cosponsor the Nursing Home Contract Arbitration Fairness Act introduced by Senator Martinez and my senior 

colleague from Wisconsin Senator Kohl. The bill will restore access 

to the courts for nursing home residents who have suffered abuse 

and neglect. That access in the end helps improve the quality of 

care for our seniors. Mr. Chairman, the rule of law means little if 

the only forum available to those who believe that they have been 

wronged is an alternative unaccountable system that they have not 

chosen voluntarily when the laws do not necessarily apply. This 

legislation protects seniors from exploitation while still allowing alternative methods of dispute resolution to be chosen by the parties. 

I applaud you, Senator Kohl and Senator Martinez, for introducing 

the bill, and I hope this hearing will move us closer to enacting it. 

[The prepared statement of Senator Feingold appears as a submission for the record.] 

Mr. Kurth, thank you again for coming and testifying. One thing 

you talk about in your testimony is how the secrecy of arbitration 

is used as a shield for corporations to hide behind. Is one of the 

reasons that you wanted to have a real trial in court that you 

wanted to help educate the public and talk about what your family 

has been through in an open proceeding? 

Mr. KURTH. Yes, sir. We live in a small community, and what we 

saw was that even though this happened, this terrible thing happened, nobody knew about it unless they knew our family. Yet 

other members of the community were continuing to enter the facility; they had no idea what they were getting into or what they 

were being asked. 

When I was there, in one of the other rooms was somebody that 

taught us biology in high school. This is all about public safety and 

public awareness and fairness as well. We just want to make sure 

that this does not happen to other people from our community. 

Senator FEINGOLD. Thank you. 

Mr. Connor, in Ms. Rice-Schild’s testimony she claims that you 

misrepresented how arbitration agreements are presented to potential residents. She also claims that potential residents at her facility are not required to sign the arbitration agreement and that several have chosen not to do so. 

In your 25 years representing residents and nursing homes, have 

you found that residents are generally told that they do not have 

to sign the arbitration clause? 

Mr. CONNOR. No, that would be in my experience the exception 

rather than the rule, and, in fact, as Ms. Hirschel has pointed out, 

oftentimes residents and their families are reluctant at the very 

outset to buck the system and to buck the proposals. They do not 

want to be deemed to be problem oriented. But in any number of 

19 

instances, residents have been told that if they do not sign the 

agreement, then they will not be permitted to gain admission to 

the facility. And this is simply not acceptable in many instances because it may be many miles to the next nearest facility, and they 

will not have an opportunity to visit their loved ones as they otherwise would. 

These agreements are often sugar-coated in very soothing tones 

and vague terms. They are told if there is a dispute, we will be able 

to quickly resolve it at minimal expense. 

Well, the extent of the rights that one is giving up are dramatic, 

and the minimization and expense is to the nursing home. It is not 

to the resident. Oftentimes, the filing fees alone in arbitration 

cases run into the thousands and thousands of dollars. That is not 

true with filing fees for a court, plain and simple. 

Senator FEINGOLD. Ms. Hirschel, just following up on something 

Senator Martinez was talking about, Mr. Ware argues that the bill 

we are discussing today is unnecessary because courts can still find 

an arbitration agreement unconscionable if it is blatantly unfair to 

one of the parties. Now, that, of course, requires a lawsuit to be 

filed, which I thought arbitration was supposed to avoid. But leaving that aside, do you think that the fact that courts can theoretically find an agreement unconscionable is enough protection for 

vulnerable citizens in this situation? 

Ms. HIRSCHEL. Well, first, Senator Feingold, I think that in my 

understanding of these arbitration agreements, they are unfair because the nursing home picks the arbitrator and because the arbitrator is often a health care industry lawyer who has an interest 

in finding for the facility and having low awards so that they will 

get repeat business from that long-term care facility. The facility 

picks the location. There are costs, as Mr. Connor was just referring to, that do not occur in litigation. So I think that these agreements just are unfair, especially when you think about the very 

vulnerable people who are asked to sign them. 

Second, as you suggested, I think it is really very cumbersome, 

very costly, and perhaps unrealistic to suggest that every time a 

family finds themselves in a situation like the Kurths or in the situation of Joe Louis’ sister that they would first go through a court 

proceeding and then, if they lose, have to go through arbitration as 

well. 

Senator FEINGOLD. Mr. Connor, do you want to comment on 

that? 

Mr. CONNOR. Yes, Senator Feingold. I should point out that increasingly we are seeing provisions in the arbitration agreement 

that indicate that if there is a dispute about the appropriateness 

or propriety of the arbitration, that will be resolved by the arbitrator as well. There just—I think it is just important to understand the reality of the situation. These are agreements that are 

tilted against the resident and in favor of the nursing home. The 

business is provided to the arbitrators that are involved. They typically are health care lawyers who have a very cozy and close relationship with the defendant nursing homes. 

Now, if you had a judge who was hawking his venue as a business-friendly environment and whose fees and salary were being 

paid by the defendants in that case, you would say he has a conflict 

20 

of interest or she has a conflict of interest, and they are not qualified to serve. This is an unlevel playing field that results in the 

abuse of nursing home victims who already have been abused and 

neglected by their caregivers. 

Senator FEINGOLD. Thank you, Mr. Connor. 

Thank you, Mr. Chairman. 

Chairman KOHL. Thank you, Senator Feingold. 

Senator Salazar? 

Senator SALAZAR. Thank you very much, Chairman Kohl, for 

holding this hearing on this very important issue, and to you, Mr. 

Kurth, I give you my condolences for the loss of your family member. 

I have a general question, and that is—and maybe you can answer this. My sense is that when people go into a nursing home, 

they sign a whole set of documents, kind of like a house closing 

where you have a number of maybe 10, 15, 30 pages that you are 

signing. And my question to you is: How knowingly are people 

about the arbitration provisions and the agreement at the time 

that they are actually signing it? Is it something that you believe 

they actually focus on and they know that they are signing an 

agreement that says if there is a dispute with the nursing home, 

it is going to go to arbitration? Or do you think this is part of the 

boilerplate that they end up signing? Who wants to take that question? Kelley? Ms. Rice-Schild? 

Ms. RICE-SCHILD. I will take the question since I probably have 

the most experience explaining admission to residents. The residents, when they are admitted—and I will speak for my facility. 

Many times it is not on the day of admission, and I know that a 

lot of my peers, it is not on the day of admission, because it is a 

hectic and emotional day. And in our case, the arbitration agreement needs to be initialed and explained. So before the patient or 

representative initials that section, you explain to them exactly 

what it means. And it is also voluntary, just like admission to the 

facility is voluntary. You do not have to—you are not forced to stay 

in the facility if you experience bad care. You are not forced to sign 

the arbitration agreement. It is 100 percent voluntary, and you can 

cross it out if you wish, and it makes no difference. 

Senator SALAZAR. And how many of the patients that you admit 

actually cross it out? 

Ms. RICE-SCHILD. I have had about four or five cross it out. 

Senator SALAZAR. Four or five out of— 

Ms. RICE-SCHILD. Four or five since we have started using arbitration clauses in admission agreements. I know for other facilities 

it is about 90 percent that do sign the arbitration agreement, 10 

percent that do not. 

Senator SALAZAR. So most people will go ahead and sign it. 

Ms. Hirschel? 

Ms. HIRSCHEL. Yes, Senator, I think it was really telling that 

Senator Martinez himself said that he really did not know if the 

admissions paper he signed for his family member included a mandatory arbitration provision. And I know absolutely that if I were 

to poll all of the clients I have had in the last few years about what 

the—not just whether there was arbitration, but what most of the 

provisions in the admissions contract were, my clients would not be 

21 

able to tell me that. And certainly not all facilities have the practices that Ms. Rice-Schild has described. 

So I think that the combination of the fact that these are sometimes varied, they are in legalese in many cases, and there is just 

too much going on means that families simple do not understand 

them. 

Senator SALAZAR. Let me ask another question related to arbitration. You know, as a lawyer practicing in the private sector for a 

long time, I often would talk to my own clients about looking at 

less expensive ways of being able to resolve disputes by going 

through mediation and going through arbitration and avoiding the 

high costs of a full-blown court dispute. It seems to me that since 

the Federal Arbitration Act was passed for nursing homes in 1925, 

a lot has happened. And I would ask the question whether we just 

need to reform the mediation, arbitration, dispute resolution provisions of the law, or do you think we just need to throw them all 

out? Who wants to take that one? Yes, at the very end, Professor? 

Mr. WARE. Senator Salazar, I think you raise an important question because the Federal Arbitration Act has been serving this Nation for 80-some-odd years now. And I think part of the genius of 

this act is that it does give the courts on a case-by-case basis the 

power to decide the variety of issues that have been raised by the 

witnesses here. 

For example, Ms. Hirschel refers to arbitration agreements that 

allow the facility to choose the arbitrator. That is something I have 

never seen, and occasionally I have seen outside of the nursing 

home context an agreement allowing the party that drafted the arbitration agreement to choose the arbitrator, and courts, I have 

seen—every time I have seen this—hold that unconscionable, unenforceable. Some of the other clauses the witnesses have mentioned 

also, courts frequently hold unconscionable, such as overly high 

fees for the consumer or one-way arbitration that Senator Feingold 

referred to where only one party is bound to arbitrate. 

In other words, these are the sorts of extreme clauses that are 

one-way, that are favorable to one side. The law is working in that 

courts do refuse to enforce them. 

Senator SALAZAR. Let me just ask a question of all of you and 

just ask you to raise your hands. I will give you three options. If 

you were Queen for the Day and you had to choose between three 

options—one, throwing out the Federal Arbitration Act, leaving it 

silent; two, reforming it to take care of some of the abuses that people have talked about; or, three, just keeping it the same, keeping 

it as it is. 

So throw it out, how many would just throw it out? Raise your 

hand if you would just throw it out. 

Okay. How many of you—you might want to throw it out, you 

might want to think about it. 

How about reform? How many of you would want to reform it 

and it needs change? So three of you. 

And how many of you would say keep it as it is? Okay. Thank 

you very much. 

Thank you, Mr. Chairman. 

Chairman KOHL. Thank you, Senator Salazar. 

22 

Ms. Rice-Schild, according to stats that I have seen, close to 70 

percent, 65 to 70 percent of people admitted to long-term care facilities have some form of dementia or serious mental impairment. 

Under what conditions could we imagine that they are qualified to 

make the kind of a judgment that we are talking about here at this 

hearing? 

Ms. RICE-SCHILD. Chairman Kohl, if a patient has dementia or 

is unable to sign for themselves, then in Florida there is a State 

law that requires a health care proxy. The person that has been 

designated to make health care decisions on behalf of the person 

because they are not mentally capable to would be responsible for 

all health care facilities, including signing the admission contract. 

Chairman KOHL. But isn’t it true that when you are dealing with 

a class of people, the ones that we are primarily focusing on, when 

you are dealing with people who have such impairments, it is not 

possible for them to be making these kinds of decisions that we are 

talking about right now. 

Ms. RICE-SCHILD. Yes, that is correct, Senator. That is why somebody has been appointed to make those decisions for them. 

Chairman KOHL. I want to ask this question: In our bill, we are 

suggesting that the decision as to whether or not we engage in arbitration or go to court should be made after a dispute arises. That 

presupposes that both parties will decide, and, you know, they will 

figure out what they believe to be the most appropriate way. 

Whether they have their day in court, which is, you know, part of 

the American basic fabric of justice, or whether they choose to go 

to arbitration, now we are making a judgment here. I mean, you 

know, obviously things are not—but isn’t that the most reasonable 

way to litigate? Decide what is going to be done in the event that 

an issue arises, that after the issue arises, the party has a right 

to go to arbitration, or the party has a right to go to court? If as 

you say, Mr. Ware, they will always decide to go to court, well, not 

necessarily. But if they would, that is the American way. So what 

is the issue, Mr. Ware? 

Mr. WARE. Well, the issue is whether people should have the option to agree at the pre-dispute stage to bind themselves to this 

contract. 

Chairman KOHL. Well, why should they do that? I mean, why 

don’t we just abolish court proceedings altogether in everything 

and just say the American way from now on is arbitration, we do 

not go to court, we do not deal with juries, we do not deal with that 

whole process? What is so different about long-term care facilities 

that it should be accepted as the common way in which we handle 

disputes in our society? 

Mr. WARE. Well, Senator Kohl, as even Senator Feingold alluded 

to earlier, there are cases where everyone agrees arbitration is desirable, and an agreement of parties to use it should be enforced, 

whether it is a business-to-business case or whatever. And my 

point, again, is there is lots of gray area. There are lots of intermediate cases between the extremes on one side, where nobody 

would want the agreement enforced, and extremes on the other 

side, where everybody would. And the question again is: Should 

you resolve that through legislation, which paints with a very 

23 

broad brush? Or should you leave it to the courts assessing the nuances of each case on a fact-intensive basis? 

Chairman KOHL. I am not sure I understand that. 

Mr. Connor? 

Mr. CONNOR. Senator Kohl, I think it speaks volumes that Professor Ware says that given the option about whether to choose arbitration or litigation after the dispute has arisen speaks volumes 

about the perceived fairness of the remedy at issue. He is concerned that if you pass this, nobody will pick it. Well, why won’t 

they pick it? Because they are getting the shaft in the current system. 

But I can tell you, for instance, there might very well be instances involving post-dispute arbitration where a nursing home 

resident who is still alive, who was not killed by the abuse or neglect, would prefer to have the case arbitrated and brought to a 

quicker resolution so that they could get the benefit of the monies 

to be awarded to augment the care that they would receive going 

forward into the future. 

But I just think it speaks volumes about the fairness, or lack 

thereof, of this kind of decisionmaking when the professor, who 

studied this for 15 years says, you know, if you give a person a shot 

at it after the dispute arises, they are not going to take it, and it 

is going to gut pre-dispute arbitration. 

Mr. WARE. Senator Kohl, the reason parties do not agree to postdispute arbitration very often is because it takes two to tango. It 

takes two to form an arbitration agreement. If either side of the 

dispute thinks litigation is more favorable to them than arbitration, then there is no post-dispute arbitration agreement. They end 

up litigating. Sometimes it is the plaintiff who says I have got a 

strategic advantage here from litigation; it enables me to do something to club this defendant that arbitration does not enable me to 

do. Sometimes it is the defendant who says litigation gives me a 

strategic advantage; it allows me to do something to club the plaintiff that arbitration does not allow me to do. 

In other words, the burdensome procedures of litigation, the 

elaborate pleadings and discovery and motion practice and all, 

sometimes that is a tool the plaintiffs can use; sometimes that is 

a tool defendants can use. Arbitration’s a quicker, cheaper process, 

gives both sides fewer of those clubs to hit the other side with. 

Mr. CONNOR. All of which, Senator, I would suggest speaks to the 

fact that people are not making an informed judgment. They are 

not giving informed consent on the front end when they enter into 

these agreements. 

Chairman KOHL. Ms. Rice-Schild? 

Ms. RICE-SCHILD. It just seems to me that doing it post would 

be similar to closing the barn door after the horse is gone. It is a 

very emotional time. It is an adversarial time. And if you are going 

to be clear-headed, I think it needs to be done prior to any incidents that would arise. 

Chairman KOHL. Yes, Ms. Hirschel? 

Ms. HIRSCHEL. Thank you, Senator. I want to say that I really 

share your confusion about why these cases would be considered 

different and why, if the arguments here apply, we would not just 

throw out our whole civil justice system altogether. And I think 

24 

that neither our civil justice system nor families like the Kurths 

should be vilified. If there are costs to litigation, I want to note 

that there are also extraordinary benefits to that litigation, including the public disclosure of wrongdoing, appropriate penalties for 

facilities that really have done something terribly wrong; and also, 

the fact that through allowing civil litigation, we do promote citizens’ belief that the system is just, and that is important, too. 

Chairman KOHL. That is a very important point, and I would like 

to ask you that, Ms. Rice-Schild. One of the things that keep our 

society honest is that, you know, people are exposed for wrongdoing 

in addition to being condemned and fined. Why should your industry be any different? 

Ms. RICE-SCHILD. I do not in any way support poor care, and I 

apologize also to Mr. Kurth because I feel it is deplorable that conditions should arise like that. I am not here today to support any 

poor-performing facility. I am here really to say that we need to 

have some protection so that the good facilities, like my facility, 

will not go bankrupt with one lawsuit. And that could very easily 

happen. After 60 years, four generations, one lawsuit, because I 

cannot afford insurance because in Florida it is not written, my facility could be gone. So we do not need to throw the baby out with 

the bath water. 

Chairman KOHL. Again, I want to make the point or ask the 

question. One of the purposes of the system, whether it be in your 

industry or any other industry, is that exposure to wrongdoing if 

convicted, you know, has an adverse impact on future business opportunity. Now, why should your industry be excepted from that? 

Ms. RICE-SCHILD. It seems that we currently are included with 

all other businesses in the Arbitration Act, and we are being singled out in this bill. I do not know that I can answer your question 

because I feel like skilled nursing facilities and, from my experience, 25 years of trying to in joint partnership provide very quality 

care with my patients and families, are being singled out. 

Chairman KOHL. You know, one of the things that we are working on in our Committee—and we have succeeded in getting it— 

is a public rating of all facilities so that people who are thinking 

about placing a loved one into a facility can look on the website and 

see what the rating is, one star, two, three, four, five stars. Transparency, in other words, which is really important. I am sure you 

understand when people choose where to enter themselves or enter 

a loved one in terms of a long-term care facility, it is very helpful 

to know which ones have great records and which ones have blemished records. 

Now, this process tends to obscure that, and we are looking for 

transparency. The process that we are discussing today and your 

advocacy of it, Mr. Ware, obscures that. Now, that is pretty important, isn’t it, Mr. Ware? 

Mr. WARE. Yes. I think it is important to remember that the public accountability we all want for negligent nursing homes can come 

through arbitration just as through litigation. People have used the 

word ‘‘secret’’ to describe arbitration. But, again, that gets to the 

rare arbitration clause that requires parties to the dispute to keep 

the dispute confidential, and courts tend not to enforce those. That 

is another one of those red buttons where courts find unconscionVerDate Aug 31 2005 11:01 Nov 26, 2008 Jkt 044741 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\44741.TXT SJUD1 PsN: CMORC
25 

able such agreements. So parties to arbitration who want to expose 

to the public the negligence are free to do so. 

Chairman KOHL. Yes, but that is a voluntary thing. When you 

go to court, it is not voluntary. 

Mr. WARE. Well, that is certainly true that the public, members 

of the public, can walk into a courtroom uninvited and typically 

cannot do that in arbitration. That is right. But the people who 

have an incentive to make publicly known negligence or a dispute 

in arbitration, the parties and their lawyers are free to do so. 

Chairman KOHL. Yes, but they could be paid, as so often occurs 

in other situations, a certain amount of money to keep it confidential. 

Mr. WARE. Oh, yes, Senator. But when you come to a settlement 

agreement that has a confidentiality clause, that is an important 

issue that I know you have worked on. But it is an important issue 

in arbitration and in litigation equally. That concern of settlement 

secrecy is not something particular to arbitration. 

Chairman KOHL. Yes, but when you go to court and have a jury 

trial, that is public, isn’t it, Mr. Connor? 

Mr. CONNOR. It is, and I would submit, Senator Kohl, that sunshine is one of the best disinfectants for the industry. 

Just to give you an example, I recently tried a case in Santa Ana, 

California, where a woman died from horrific Stage IV pressure ulcers to the bone on both heels. In the aftermath of that trial, there 

was a television news clip that ran on the news for 2 days that referenced the facility, Sunrise Senior Living of Laguna Hills, California. And it referenced it about four times in the news clip. 

Now, I am sure that the owners of Sunrise Senior Living were 

mortified about it, but the public benefit to be derived from the 

public learning about what went on in that facility was tremendous. And I guarantee you many more people learned of the poor 

quality of care in that facility than they would have picked up from 

an Internet site that had some rating system. 

Chairman KOHL. Anybody else have comments to make on this 

hearing, any issues, implications, inferences, something we have 

not covered that you think needs to be discussed, mentioned? 

[No response.] 

Chairman KOHL. Well, I want to thank you all for being here 

today. I think that we have fairly brought to the surface all the different issues, the angles, and the implications of what we are talking about. And, without objection, letters of support for the bill or 

against the bill from anybody—AARP, the Alzheimer’s Association, 

numerous consumer groups, as well as any other group—will be included in the record. The record will remain open for a week for 

additional statements, comments, questions, and we thank you 

again for being here. 

This hearing is adjourned. 

[Whereupon, at 11:53 a.m., the Subcommittees were adjourned.] 

[Questions and answers and submissions for the record follow.] 

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