Nursing Homes & Arbitration Clauses: Don’t Sign Away Your Rights!

Placing a loved one in a nursing home is an already emotionally taxing endeavor and senior care facility managers know it. That is why many senior care centers may require that you agree to arbitration solving any potential disputes just in case their services are not up to standard. While arbitration is less costly and faster than a traditional lawsuit, it usually benefits only the nursing home. Here’s why you should steer clear of any facility that forces you to sign an arbitration clause before doing business with them.

What Is an Arbitration Clause?

An arbitration clause is a provision within a contract that stipulates the rights and obligations of each party in case of a legal dispute. If they signed an arbitration cause, both parties agree not to file a lawsuit against one another and to reach an amicable agreement through arbitration instead.

In many cases, arbitration may lead to solutions similar to the ones a court of law would issue, such as settlement payments, but in most cases, the party that is the most financially vulnerable in the dispute will have the most to lose.

Arbitration clauses are binding or nonbinding. Binding arbitration is the worst as it means that, if you agree to it, you would sign away your right to bring the dispute into a courtroom or appeal the arbitrators’ decision.

Within a libertarian society, each individual’s welfare, body, and mind enjoy legal protection and the court system is there to make sure that that said protection is effective and respected. But if you agreed to mandatory arbitration, the courts would just enforce the arbitration agreement, regardless of how unfair it may be for you, leaving no room for further legal recourse.

Nursing homes are very fond of binding arbitration clauses as they mean fewer headaches for them and usually a less favorable decision (you will have to put up with) for you. Also, binding clauses are faster than their non-binding counterparts. Non-binding arbitration clauses, on the other hand, enable you to reject an unfavorable arbitrators’ decision and take the dispute to a courtroom for a final solution.

Arbitration clauses are a great way of solving disputes between parties that have equal bargaining power, but they are highly unadvisable in contractual relationships such as those between a senior care facility and a nursing home resident or their representatives since one side is extremely vulnerable in case of a dispute.

Unfortunately, last year, the Centers for Medicare and Medicaid Advocacy (CMS) gave nursing homes the green light to insert pre-dispute, binding clauses in their contracts with residents or their families, despite several years-long pushes by advocacy groups to ban nursing home arbitration agreements altogether.

Do I Have to Sign Such an Agreement?

If a nursing home asks for you to sign a binding arbitration agreement, you are not obliged to agree to such a provision. The CMS has also ruled that nursing homes are not allowed to use arbitration agreements as a prerequisite for admission or as a condition for somebody to continue to benefit from their services and care.

Additionally, nursing homes are legally obliged to inform residents and their families of their right not to sign such a mandatory agreement. However, ill-informed people often sign these agreements as they mistakenly believe that the nursing home is not going to neglect or abuse their loved ones. But since elder abuse is now rampant in the nation’s senior care facilities, many of those people are in for an ugly surprise.

Some nursing homes may also require that you sign away your right to report the abuse or the neglect with the Department of Public Health. This means that you will literally renounce all your rights to fair litigation and put yourself and your loved one at the mercy of an arbiter.

In short, you don’t have to sign such an agreement, and a simple ‘no’ should be enough when having a preliminary discussion with a nursing home. If the nursing home insists that the arbitration clause is a condition for admission you could sue them for violating federal law or unfair trade practices. But who would want to do business with a nursing home you just sued for not admitting your loved one to their premises? You would be better off searching for a new nursing home.

To Conclude

Our nation’s nursing homes now have the federal nod to insert sneaky binding arbitration agreements in the contracts with their residents or their families, but they are not allowed to make it a condition of admission or continuation of care. However, many people agree to such clauses having the wrong belief that their loved one would never be abused or neglected in a senior care facility. In reality, those people simply sign away their rights to a fair trial before a jury and leave the door wide open to potential abuse, as fear of serious legal action is no longer there.

Featured image credit: Matthew Bennett on Unsplash