Nursing home arbitration agreements are contractual provisions that require residents to settle claims against the facility in private, confidential hearings rather than through the court system. Nursing homes often include arbitration agreements with the admissions paperwork. At an arbitration, both parties present evidence to an arbitrator, rather than a judge or jury, and the decision is legally binding and final.
Arbitration agreements only benefit nursing homes. They deprive victims of nursing home abuse of their right to pursue justice through a jury trial. We strongly recommend against signing them.
If your loved one has already signed an arbitration agreement, we can evaluate its enforceability. If a facility has pressured them to sign one, call our California nursing home abuse lawyers at 888-887-9777 before they sign. We can review the contract and advise you and your loved one of your rights.
Table of Contents:
- What is an Arbitration Agreement?
- Why Do Nursing Homes Present Arbitration Agreements?
- Should You Sign a Nursing Home Arbitration Agreement?
- How Arbitration Agreements Impact Nursing Home Injury Claims
- Protecting Your Rights When a Nursing Home Presents an Arbitration Agreement
- Let Lanzone Morgan, LLP Protect Your Rights
- Arbitration Agreement FAQs
What Is an Arbitration Agreement?
An arbitration agreement is a contract that requires the parties to resolve disputes through a private hearing, known as binding arbitration, rather than through the traditional legal system.
The agreement will usually specify the following elements:
- Arbitrator: The arbitrator is usually selected through a process controlled by the nursing home and decides disputes in place of a judge or jury.
- Finality: The arbitrator’s decision is binding and cannot be appealed or reversed except in very limited circumstances involving fraud or serious procedural violations.
- Enforceability: The arbitration decision has the same legal force as a court judgment and can be enforced through the courts.
- Confidentiality: Arbitration proceedings and decisions are confidential, preventing families from warning others about dangerous conditions or patterns of abuse.
By signing an arbitration agreement, residents cede control of the dispute resolution process to the nursing home. The proceedings occur under a shroud of privacy with no right to appeal and no public accountability for the facility.
Why Do Nursing Homes Pressure Residents To Sign Arbitration Agreements?
Nursing home arbitration agreements have two primary purposes:
- To protect the nursing home’s reputation
- To minimize liability in injury claims
Arbitration protects nursing homes from facing jury trials. Confidentiality clauses prevent the public from knowing whether the nursing home has been held liable for neglect or abuse. They give nursing homes an advantage by allowing them to select the arbitrator or control the selection process, which could result in smaller awards than what a jury trial could have yielded. In contrast, arbitration agreements offer no protection to residents.
Should You Sign a Nursing Home Arbitration Agreement?
No, you should not sign an arbitration agreement. Arbitration agreements benefit nursing homes at the expense of injured residents. Federal law prohibits Medicare and Medicaid-certified nursing homes from requiring them.
In 2016, the Centers for Medicare & Medicaid Services issued a final rule banning pre-dispute arbitration agreements. However, CMS repealed the ban in response to opposition from the nursing home industry. After further revisions, the 2019 final rule allowed nursing homes to use pre-dispute arbitration agreements with the following restrictions:
- They cannot require them as a condition of admission or continued care.
- They must explain arbitration agreements to residents and their representatives in plain language that they understand.
- They must provide a process for selecting a neutral arbitrator.
Despite these restrictions, nursing homes continue to present arbitration agreements without fully explaining their consequences during a stressful time when families are focused on securing care for their loved ones.
How Arbitration Agreements Impact Nursing Home Injury Claims
When a nursing home fails to provide needed care or allows abuse, California elder abuse laws normally allow you to pursue justice and compensation through an injury lawsuit. However, signing an arbitration agreement exchanges one’s rights to a jury trial and appeal for a final, binding decision issued by an independent arbitrator behind closed doors.
The arbitration process can take longer than the lawsuit process and requires significant out-of-pocket payments, often exceeding $10,000.
Although the law requires the arbitrator to be “neutral,” nursing homes typically have considerable influence over the selection process. The confidentiality of arbitration also means facilities avoid public pressure to improve, enabling abuse and neglect to continue unchecked.
Many lawyers are reluctant to accept arbitration cases because they overwhelmingly favor nursing homes. At Lanzone Morgan, LLP, we’re dedicated to protecting vulnerable adults even if it means representing them at arbitration. Contact us now for a free consultation.
Our Work To Limit Nursing Home Arbitration Agreements in California
As one of the leading nursing home abuse law firms in the United States, we are dedicated to protecting the rights of nursing home residents through litigation. Beyond recovering compensation for individual families, we work to eliminate nursing home abuse through accountability and legal change.
In Harrod v. Country Oaks Partners, Lanzone Morgan associate Suzanne Voas successfully argued that a nursing home arbitration agreement was unenforceable because the resident’s health agent under a power of attorney, not the resident, had signed it.
The facility appealed all the way to the California Supreme Court, which unanimously ruled in favor of our client. The court held that health care agents cannot sign arbitration agreements because:
- They are optional.
- They waive fundamental rights.
This ruling protects California nursing home residents from having their rights signed away by health care agents without informed consent.
Protecting Your Rights When a Nursing Home Presents an Arbitration Agreement
If you hold a health care power-of-attorney for your loved one, any arbitration agreements you sign on their behalf are unenforceable in California. If your loved one lacks capacity, any agreement they sign is also unenforceable.
If your loved one has the capacity to handle their affairs, talk to them about arbitration agreements and explain why they should not sign them. Be present during the admissions process and read every line of every document carefully.
Refuse or instruct your loved one to refuse to sign any contract that contains a clause requiring binding arbitration. Remember, federal law prohibits nursing homes from denying admission or threatening discharge for refusal to sign an arbitration agreement.
Instruct your loved one not to sign documents without you present, and tell the nursing home not to present documents to your loved one for signature without you present.
What To Do if Your Loved One Signs an Arbitration Agreement
Nursing homes generally cannot require pre-dispute arbitration agreements as a condition of admission or continued care. If your loved one has signed an arbitration agreement, Code of Federal Regulations § 483.70 gives them the right to rescind it within 30 days. Check your loved one’s contract paperwork at least every 30 days, in case the facility obtains your loved one’s signature behind your back.
What To Do if the Nursing Home Invokes Arbitration
If you have a dispute with a nursing home, and the facility claims you or your loved one signed a binding arbitration agreement, contact a lawyer immediately to confirm whether your loved one entered a legally binding arbitration agreement. If the agreement is enforceable, our California elderly abuse lawyers can represent you in arbitration.
Spotting Hidden Arbitration Traps in Nursing Home Contracts
An arbitration clause may be buried as a clause within the contract, presented as a separate agreement, or both. They can be easy to overlook at admission when you are already experiencing information overload.
Look for phrases like the following:
- Alternative dispute resolution
- Jury trial waiver
- Binding arbitration
- Submit to arbitration
Here is an example of common arbitration language:
“Any claim, controversy, or dispute arising from this contract or [resident’s] care shall be settled exclusively through binding arbitration before JAMS Mediation under California law. [Nursing home] and [resident] hereby waive trial by jury and agree that the arbitrator’s decision shall be final and binding.”
The facility may present a form stating that they explained the arbitration agreement and you understand it. Read the acknowledgement carefully, and DO NOT SIGN IT if the wording suggests you are consenting to arbitration. When in doubt, consult an attorney before signing any nursing home paperwork.
Let Lanzone Morgan, LLP, Protect Your Rights
Arbitration agreements protect nursing homes while depriving residents and their families of the right to bring their case to a public trial before a jury of their peers.
Our nursing home abuse law firm is dedicated to promoting the rights and welfare of elderly and dependent adults. Whether you have signed an arbitration agreement or need advice before doing so, we can protect your rights and pursue justice for your loved one.
Contact us online or call 888-887-9777 today for a free consultation.
Arbitration Agreement FAQs
Can a Nursing Home Deny Admission or Evict Someone for Refusing to Sign an Arbitration Agreement?
No, under Code of Federal Regulations § 483.70 , a Medicare or Medicaid-certified nursing home cannot deny admission or discharge your loved one for refusing to sign an arbitration agreement. The facility must also disclose that the agreement is not mandatory.
Can a Lawyer Still Help if My Loved One Signed an Arbitration Agreement?
Yes, there are several ways Lanzone Morgan, LLP, can help if your loved one signed an arbitration agreement:.
- If your loved one signed within the last 30 days, we can prepare a written statement informing the facility that your loved one is rescinding the agreement.
- If 30 days have already passed, we can evaluate its enforceability and, if applicable, fight in court to nullify it.
- If you have a nursing home abuse claim with an arbitration agreement in force, we can represent you in arbitration.
Should I Sign an Arbitration Agreement if the Nursing Home Has a Good Reputation?
No, you should not sign a nursing home arbitration agreement under any circumstances. Nursing home abuse can happen in any facility, regardless of positive reviews and high ratings. Signing an arbitration agreement shields nursing homes from accountability and deprives residents of their rights, offering them no benefits in return.
How Do I Refuse To Sign if the Main Admissions Contract Includes Arbitration Language?
If you spot arbitration language in the main contract, you must make clear your intention to refuse it. One way is to cross out the entire section, initial it, and date it. If it would make you more comfortable, you can also demand a new contract that omits the language. However, this could delay the admissions process.
The following content has been legally reviewed and approved by nursing home abuse attorney Anthony Lanzone. Anthony holds notable memberships with professional organizations including the American Association for Justice and Consumer Attorneys of California.