Access to a jury in a civil case is an important constitutional right. The Department of Health and Human Services proposes to deny that right to our most vulnerable citizens.
HHS is proposing to abolish federal regulations prohibiting arbitration agreements as a condition for admittance of the elderly to a long-term care facility. It supports this proposal with the usual blather about how efficient and inexpensive arbitration is compared with litigation (i.e., access to a jury).
It also talks about the public policy in favor of arbitration, which was concocted to make life easier for the courts.
In my law practice, I found that arbitration worked basically in two types of situations. One is where the dispute was fairly simple. The other is in larger disputes where the parties were in an equal position of power.
This proposed rule would apply to cases of abuse and neglect. Anyone who thinks a 90-year-old in a wheelchair is equal in power to the facility has been visiting the cannabis store too often.
