Florida Senator Mel Martinez (R) co-sponsored a bipartisan bill, Fairness In Nursing Home Arbitration Act. The Act seeks to amend the Federal Arbitration Act to prevent nursing homes and ALF's from using pre-dispute arbitration clauses. It also requires that the interpretation of such clauses be determined by the court, not the arbitrator. In short, it circumvents Cardegna v. Buckeye Check Cashing by eliminating the arbitrator being the first stop for interpreting arbitration provisions AND it further singles out nursing homes and ALFs to prevent the use of (federally "favored") arbitration.

According to Martinez's website, he takes the position that the FAA was enacted for "business" arbitration only and that the use of arbitration in nursing homes "is an unwarranted intrusion into a vulnerable population’s right to access the civil justice system..." No matter, as we reported before, that less than 2% of civil trials ever reach a jury or judge. No consideration is also given to the need or basis to single out one industry to be barred from "favored" arbitration.

The bill does not appear to address jury trial waivers nor other remedial limitations. We'll watch this bill and its development.