KU News Release

KU law professor to testify on Fairness in Nursing Home Arbitration Act

Stephen Ware

LAWRENCE — A University of Kansas School of Law professor will testify today in opposition to the Fairness in Nursing Home Arbitration Act before two U.S. Senate committees.

Stephen Ware, author of two books and more than 20 articles on arbitration law, will speak at a joint hearing before the Senate Judiciary Subcommittee on Antitrust, Competition Policy and Consumer Rights and the Special Committee on Aging regarding the measure (S. 2838).

The hearing will take place at 10:30 a.m. at Room 226 in the Senate Dirksen Office Building in Washington, D.C.

The bill was introduced by U.S. Sens. Herb Kohl, D-Wis., who chairs the subcommittee, and Mel Martinez, R-Fla., to address the increasing practice of nursing homes requiring their residents to agree, at the time of admission, to arbitrate any future disputes with the nursing home. The bill would require that such arbitration agreements be made after a dispute has arisen; courts would be prevented from enforcing pre-dispute arbitration agreements between long-term care facilities and residents or their families.

Ware opposes the measure on the ground that it would tend to harm those it aims to help: nursing home residents and their families. If enacted, Ware explained, the bill would virtually eliminate arbitration of nursing-home disputes even though arbitration tends to be quicker, more efficient and less costly than litigation.

“Once a dispute has occurred, parties rarely agree to arbitrate because of one party’s self-interest in whatever tactical advantages it can gain from litigation, whether from an easily impassioned jury or expensive and time-consuming pretrial discovery and post-trial appeals,” Ware said.

“By contrast, pre-dispute agreements are formed at a time when both parties are uncertain about whether there will be a dispute and, if so, what sort of dispute it will be. That is the time when both sides have an incentive to choose the forum that reduces process costs.”

There is no need to ban pre-dispute arbitration agreements, Ware said, because the Federal Arbitration Act already allows courts to invalidate unconscionable arbitration agreements.

“As every case is different and arbitration agreements can be written in a wide variety of ways, I believe these issues are better handled on a case-by-case basis in the courts, rather than with the overly broad brush of legislation,” he said.

Ware is the author of “Principles of Alternative Dispute Resolution” and “Arbitration Law in America: A Critical Assessment.” An honors graduate of the University of Chicago Law School, he taught at five other law schools before joining the KU faculty in 2002. Prior to teaching, Ware clerked for Judge J. Daniel Mahoney of the U.S. Court of Appeals for the Second Circuit and was an associate at Davis Polk & Wardwell in New York City.

U.S. Sen. Sam Brownback, R-Kan., a 1982 graduate of the KU School of Law, is a member of the Judiciary Committee and the subcommittee that will hear Ware’s testimony. Ware will be one of five witnesses; the four others are David Kurth of Burlington, Wis.; Alison Hirschel, president of the National Citizen’s Coalition for Nursing Home Reform; Kelley C. Rice-Schild, executive director of the Floridean Nursing and Rehabilitation Center; and Ken Connor, an attorney at Wilkes & McHugh.

Listen to the hearing live on the Web site of the Senate Judiciary Committee.

-30-

The University of Kansas is a major comprehensive research and teaching university. University Relations is the central public relations office for KU's Lawrence campus.