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

The historical reluctance of the health care industry to utilize pre-dispute binding arbitration agreements appears to be changing in at least one sector. This Article describes a recent study of North Carolina nursing homes and their admission contracts, which revealed that forty-three percent of them now incorporate pre-dispute binding arbitration provisions. The Article also examines the Supreme Court's decision in AT&T Mobility LLC v. Concepcion because of its possible impact on the application of unconscionability doctrine in the nursing home arbitration context. 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. [PUBLICATION ABSTRACT]