If you have admitted your Loved One to a Nursing Home recently, you may (or not!) have noticed an inconspicuous clause mandating arbitration should a subsequent dispute arise. The clause I’m referring to is the:
“Agreement” to Arbitrate Clause
A broad paraphrase of the clause goes something like this:
Agreement to Arbitrate:
If there is a disagreement as to anything regarding Mom’s Nursing Home care, you agree to settle the matter by Arbitration, as opposed to taking the matter to Court.
These words are mine, not the actual legal terms contained in the Nursing Home Admissions agreement. But, you get the idea. If something goes wrong, you have agreed to arbitrate rather than go to Court.
As we get started, I want to offer you our FREE Nursing Home Admissions Tip Sheet. We will discuss the Tip Sheet further on in this blog post. Click the button below to download as you read.
What is Arbitration and What is This All About?
Arbitration is a process to settle disputes outside of Court. The prospective parties to the action have already agreed upon in advance. (Again, this is my definition in layman’s terms rather than out of Black’s Law Dictionary).
Notice that I have placed the word “Agreement” in quotes. The word “Agreement” is included in most (if not all) Admission Contracts that you sign at the Nursing Home when admitting your Mom, Dad, or spouse in as a resident. Most admissions contracts bury the Arbitration Agreement very deeply and cover it only briefly. Usually you will reach these pages after your mind is fried from all of the other topics that are covered.
As a matter of fact, in the Admissions Contract, this agreement to Arbitrate is often found in close proximity with the similarly obnoxious “Agreement to Pay”. Our previous blog post entitled “Are You Responsible for the Cost of Your Parent’s Nursing Home Care ” discusses this “Agreement”.
Why Choose Arbitration as Opposed to Going to Court?
In some situations, such as in the case of construction disputes, arbitration is preferred. When there are many industry standards and technical lingo, it is much more efficient to have the matter settled by a knowledgeable arbitrator. The arbitrator will be very familiar with a particular trade or industry and can quickly get to the real issue and settle the matter in an efficient manner. The contrary is taking it to Court and having to take the time to educate the jury about many of these important particulars before getting to the meat of the case. In some situations, this takes much longer, is more expensive, and is just not as good for either party concerned.
In Nursing Home situations, you can argue this not to be the case. Unlike a construction law case, a jury could easily understand the root issue of many Nursing Home disputes. A scenario that may be subject to potential litigation for a Nursing Home may revolve around the issue of negligence.
- An allegation that the Nursing Home aide didn’t transfer a resident properly, allowing the resident to slip and fall.
- The Nursing Home aide didn’t supervise properly. Thus, an immobile resident to get out of bed without assistance. Consequently, the resident suffered a fall and a resulting injury.
- The aide may ignore or fail to properly treat a bedsore or wound. In a worst case scenario, requiring a subsequent amputation.
- An employee may take some action or inaction resulting in the untimely death of the resident.
The root allegation of these actions could be negligence, or in some cases wrongful death. Juries have heard many cases of both verdicts many times over the years.
Hidden “Agreements” found during the Nursing Home Admissions process can be very confusing. Click Here for your Nursing Home Admissions Tip Sheet!
Why Nursing Homes Prefers Arbitration
A typical matter involving Nursing Home negligence could simply be resolved in Court. Therefore, why would a Nursing Home prefer Arbitration instead? Some have suggested that in situations where the Nursing Home may be at fault, it is better to have the case resolved by an arbitrator on its technical merits, as opposed to taking the matter to a jury.
In a situations relating to family members, Nursing Homes do not want the matter to be presented to a jury by a skilled litigation attorney. In these cases, the jury could resolve the matter on the basis of emotion, rather than on technical fact. Inflamed juries can (and have) render very large verdicts against Nursing Homes. Nursing Homes would prefer to “nip this risk in the bud” by requiring arbitration as opposed to litigation.
Can They Force You To Do This?
As you can imagine, this topic has been the source of tremendous debate in recent years. Many resident families with actions that they wanted to litigate, rather than arbitrate, have felt that they were being deprived of “their day in Court”. Many families have felt that the Arbitration Clause was presented as an iron clad “take it or leave it” part of the contract. Thus, they had no choice other than to “agree” to it, even against their will.
During the Obama administration, the prevailing opinion swung in favor of banning mandatory Arbitration agreements in Nursing Home admissions contracts. As a matter or fact, a legislation was imposed banning Arbitration agreements. However, a challenge in Federal Court delayed implementation of the ban. Subsequently as a result of policy changes of the Trump administration, CMS (Centers for Medicare and Medicaid Services) revoked this ban, so it never went into force.
This appears to mean that Nursing Homes are again free to require Arbitration clauses in their Admissions agreements as a condition of admission. However this topic is a political hot potato, so it is subject to change again. Stay tuned.
What are Your Options?
Again borrowing from a previous blog post “Are You Responsible for the Cost of Your Parent’s Nursing Home Care”, you appear to have the same 3 options:
- Take Mom and leave – usually not a viable option. She is at the Nursing Home for a reason and is usually not able to just hop in the car with you and go back home.
- Try to Negotiate the point with them. May not be effective if all of the Nursing Homes are requiring this, but you can certainly try.
- Try to Shop around. This is effective IF done prior to the need. Again, if you are in the facility with Mom, needing to admit her today, you have few options. If you have checked around in advance, you may have more luck finding a facility that doesn’t mandate arbitration agreements. You may also check into Private Nursing Homes. Private Nursing Homes are relatively new options (in many areas). However, since they are privately owned they may play by different rules. Some do not accept Medicaid or Medicare reimbursement and are strictly private pay.
You can see how this issue can change quickly with the prevailing political climate. Given the high emotions on both sides of the issue, this ruling may change again. Particularly, if and when we have new elected officials in Congress and in the office of President. In the meantime, click here to review the current CMS Fact Sheet on this topic. AND, please download our Free Nursing Home Admissions Tip Sheet!