Arbitration Agreements Used by Nursing Homes: An Empirical Study and Critique of AT&T Mobility v. Concepcion

Source: Lisa Tripp, John Marshall Law School, unpublished, 2011

From the abstract:
Although the health care industry had historically been one of the fields that had not embraced pre-dispute binding arbitration agreements, that reluctance appears to be changing in at least one sector of the health care field. An examination of admission contracts used by North Carolina nursing homes and telephone survey of North Carolina nursing homes revealed that 43 percent of nursing homes now incorporate pre-dispute binding arbitration provisions into their admission contracts. All of the major nursing home chains operating in North Carolina use pre-dispute binding arbitration agreements in at least some of their facilities, while smaller operators use them sporadically….

…This is principally an empirical study, however, the United States Supreme Court decided its most recent Federal Arbitration Act case – AT&T Mobility LLC v. Concepcion – just before this paper was finalized. At first glance, Concepcion seems to have significantly impacted the power of state courts to use unconscionability to invalidate arbitration agreements. However, this interpretation may not prove accurate. Concepcion presents a very unique situation in which the opinion of a concurring justice who joined the majority opinion is so contrary to that of the putative majority opinion, that the decision may actually be a plurality and not a majority. If that is the case, Concepcion may have little precedential value beyond its particular facts.

Leave a Reply