Choosing a nursing home or an assisted living center is stressful, sad and often done in the middle of a crisis for elders and their families. The mountain of paperwork families are presented with at admission is considerable and most just sign everything without much thought because they’re overwhelmed and anxious. Unbeknownst to many families, arbitration agreements often are hidden in these contracts.

While most residents receive good care in Colorado long-term care facilities, far too many are neglected and others are victims of psychological, physical and other kinds of abuse. The problem with arbitration when this happens is that families enter into a secretive and sometimes unfair process to try to hold a facility accountable for harming their loved one.

Arbitration is not transparent. There’s no public record of arbitration, so long-term care corporations can hide their neglect or abuse from other residents, families and the media. A nursing home can have a long history of poor treatment of residents, but families looking for a place for their loved one won’t be able to find that information when they are choosing facilities.

Arbitration can be unfair, too. Conflicts of interest are possible because there are very few ethical standards or rules for arbitrators like there are for judges. An arbitrator may be partial to a care facility due to the expectation of repeat business or relationships with corporate employees. Also, arbitrators may have no training or certification, so the person expected to deliver justice may have no legal background at all.

Elders can be vulnerable, frail, dependent for care and sometimes unable to make their needs known, As Colorado’s state long-term care ombudsman, my job is to ensure that local ombudsmen act as advocates for the residents experiencing problems with care, health, safety or their basic rights – and to provide training and education for anyone working with residents in long-term facilities. All of us strive to resolve complaints that range from simple quality of care issues, such as a resident’s preferred breakfast time, to very serious, sometimes life-threatening, concerns involving abuse and neglect.

Recently, one of our ombudsmen was contacted by “Joe,” a nursing home resident who felt uneasy after a staff member demanded he sign a document “every resident had to sign “in the middle of dinner in the dining hall. That document was a forced arbitration agreement that forbade him or his family from hiring an outside professional to handle issues with the nursing home should any arise.

When the local long-term care ombudsman got involved, she was told the document was not revocable and was involuntary even though the agreement stated “the resident has 30 days to rescind the agreement.” Joe wrote a letter to do so but the nursing home refused to accept the letter, despite being submitted well within the due date.

The ombudsman and a local attorney organized a meeting to assert Joe’s right to rescind and emphasize the facility could not deny admission or continued residency to Joe for refusing to agree to the arbitration requirement. At the end of a contentious meeting, the facility finally acknowledged and upheld the resident’s right to reject the provision – but it took a professional advocate and a lawyer to do so.

No resident should be bullied into signing a forced arbitration agreement – but also no family should have to go through a process that is not transparent and unfair even if they’ve willingly signed the agreement.

Arbitration Service Provider Transparency Act (HB 1262) will create public disclosure of basic arbitration information like the parties involved and the nature of the dispute so families can identify if a facility has had claims against it. The Arbitration Fairness Act (HB 1261) will institute a set of ethical standards for arbitrators similar to those we have for judges, so families have the peace of mind that the person they are trusting to deliver justice doesn’t have any conflicts of interest. Together, they will create a better process for elders and their families to resolve disputes.

The House Judiciary Committee will hear testimony on these bills this afternoon. I urge our legislators to vote yes on the Arbitration Transparency Act and the Arbitration Fairness Act so elders and their families have a fair and transparent process to hold nursing homes and assisted-living centers accountable for actions that harm elders – and for families to have the information they need to choose a safe and healthy home for their loved one.