HOBBIES ARE GOOD FOR YOUR HEALTH

Do you have a hobby? Hobbies can give meaning and purpose to your life in retirement. As Robert Putnam points out in his book, Bowling Alone, it’s easy to discount the importance of hobbies and social engagements. Putnam details the widespread decline in civic engagement, from PTA memberships to neighborhood potlucks and bowling leagues. Over a couple of generations, Americans have misplaced the concept of free time.

SPECIAL PLANS FOR YOUR SPECIAL PEOPLE

Lily is a beautiful, active and full of personality toddler who happens to have Down syndrome. Lily’s parents and I have been friends for years and I have the continuing pleasure of watching Lily and her siblings grow up. While Lily is becoming a physical therapy rock star and hitting all her milestones in a timely fashion, her parents have started planning for the future.

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WHY WE ENJOY OUR HOBBIES

The Merriam-Webster dictionary defines a hobby as “a pursuit outside one’s regular occupation, engaged in especially for relaxation.” Hobbies include anything from playing a musical instrument to gardening, bird watching or sewing. A hobby is a way of focusing on something you enjoy just for the sake of that enjoyment. It may also be a way to clear your mental palette. You could be stressed out by a situation at work or the challenges of raising children and need an escape.

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A Kentucky appeals court held that parents, who by statute are empowered to make health care decisions for an adult disabled child, do not have the authority to bind that child to binding arbitration with a nursing home in which the child resided.***  In yet another Kentucky case, the Kentucky Supreme Court  held that an agent acting under a power of attorney lacked the authority to sign an arbitration agreement because the power of attorney did not explicitly grant the power to agree to arbitration.****  In yet another Kentucky case, a nursing home resident’s verbal directive to her son did not include any apparent or actual authority to agree to arbitration.*****


Commerce clause cases can be extremely complicated and very fact specific, leaving courts to struggle with the often complex question of whether a transaction involving interstate commerce. This Article will set forth a few cases illustrating application of the commerce clause. It is left to the reader to consult various treatises discussing the subject.******   However, the above-referenced cases illustrate various application of the Act to specific factual situations, especially in Kentucky. Residents and others having standing to sue must carefully examine the specific arbitration clause if they desire to challenge it.


SOURCES:


Allied-Bruce Terminex Cos. V. Dobson, 513 U.S. 265 (1995).

** HQM of Pikeville, LLC v. Collins, 2014 WL 3537039 (Ky. Ct. App. July 18, 2014).

*** Stanford v. Rowe, 2012 WL 4208924 (Ky. App. Sept. 21, 2012).

**** Extendicare Homes, Inc. v. Whiman, 2015 WL 5634309 (Ky. Oct. 9, 2015).

***** Kindred Healthcare, Inc. v. Henson, 2014 WL 1998728 (Ky. Ct. App. May 16, 2014).

****** See Tribe, Laurence H., American Constitutional Law, Volume I (Foundation 3d ed. 2000).

Nursing homes are inserting arbitration clauses into their admission contracts with more frequency. The Federal Arbitration Act (“Act”), 9 U.S.C. § 2, often questions the enforceability of such clauses. Therefore, it is of the utmost importance that counsel advising nursing homes understand the laws applicable to the validity of arbitration clauses related to admission contracts and the finer nuances and complexities that may present problems to nursing homes desiring to enforce such clauses.


A clause requiring the parties to submit claims to binding arbitration can be compulsory solely if federal diversity jurisdiction exists. Federal law preempts any state laws proscribing enforcement of arbitration clauses.* Notwithstanding, the Act renders “valid, irrevocable, and enforceable” any “written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, . . .  or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal.” Accordingly, although the Act is applicable to “transactions,” “contracts,” and “controversies,” pursuant to Sections 1 and 2, the Act becomes operative only if the controversy stems from a contract or transaction involving interstate commerce.


Various cases from multiple jurisdictions illustrate the operation of the Act.  In Marmet Health Ctr., Inc. v. Brown, 132 S. Ct. 1201 (2012),

THE FEDERAL ARBITRATION ACT: ITS SCOPE AND APPLICATION TO NURSING HOME ADMISSION CONTRACTS

the United States Supreme Court held that West Virginia’s proscription against pre-dispute agreements to arbitrate personal-injury or wrongful-death claims against nursing homes was a categorical rule that prohibited arbitration of a particular type of claim, conflicted with the terms and coverage of the Act, and accordingly, was preempted.


Kentucky cases illustrate how Kentucky construes the Act and its various provisions. For instance, the Kentucky Court of Appeals held that an arbitration clause did not apply to a wrongful death claim initiated by the beneficiaries of the deceased nursing home resident.**  In Ping v. Beverly Enterprises, Inc., 376 S.W.3d 581 (Ky 2012), the Kentucky Supreme Court held that a durable power of attorney did not grant the agent the authority to bind the nursing home resident to binding arbitration as the contract of admission mandated. The court held that the language contained in the power, which granted the agent the authority to manage the resident’s property and financial affairs and to make health care decisions, did not grant the agent authority to agree to binding arbitration when the arbitration agreement was not a condition of admission to the nursing home.  

BOBBY E. REYNOLDS

Bobby E. Reynolds has been an attorney in Kentucky for several years.  He practices law in Nicholasville, Kentucky, having previously clerked for a Judge on the United States Court of Appeals and having obtained an LL.M in taxation from the University of Florida College of Law Graduate Tax Program.  Mr. Reynolds also teaches continuing legal education to attorneys in Kentucky.  

more articles by Bobby E. Reynolds