FAQ: Everything You Need to Know About Nursing Home Arbitration Agreements
When an individual or a family member has to make the difficult decision about residing in a nursing home, often in emergencies, they should not be forced to sign away their legal rights through mandatory arbitration agreements. But nursing homes often present residents with these optional contracts, buried within admission paperwork, and introduced as standard. When, in fact, pre-dispute arbitration agreements do not have to be signed. Instead, the deals make room for nursing home owners to bypass a judge and jury in the event of abuse and neglect and allow wrongdoers to hide behind an arbitrator’s closed doors to resolve issues. The work is done before arbitrators who frequently work with nursing facilities and leave victims without a guarantee of justice served.
Q: What is a pre-dispute arbitration agreement?
A: Arbitration agreements take away your right to hold your nursing home accountable in court, for any and all potential negligence or wrongdoing. “Pre-dispute” arbitration agreements require you to give up this right before the harm even occurs, so you will never have the chance to decide if going to court is the right option for you. Although arbitration must be fair to both parties involved, it typically is not.
Forced pre-dispute arbitration:
- Takes advantage of vulnerable long-term care consumers
- Restricts consumer choice
- Hides the public from a history of poor care
- Lessens provider responsibility
- Drastically limits the financial liability for deliberately deceiving, injuring, abusing, or neglecting someone that would otherwise have the ability to take their case to court
Long-term care residents or their family members should never be forced, pressured, threatened, or have it suggested they waive their right to court proceedings before a dispute even arises.
Q: What counts as a dispute?
A: “Dispute” includes any event in which a resident is harmed or neglected. Examples of a dispute might be related to:
- Receiving the wrong medication or dosage
- Developing bed sores/pressure ulcers as the result of neglect
- Suffering any injury that results from caregiver negligence, including falls and broken bones
- Having money or belongings stolen
- Malnutrition and dehydration
- Being physically abused or assaulted by a fellow resident or staff member
- Being sexually assaulted by a fellow resident or staff member
- Preventable disease outbreaks that lead to infections, illnesses, and death
Once you sign an arbitration agreement, you will not be able to bring a lawsuit against your nursing home for any of these wrongdoings.
Q: Do I have to sign an arbitration agreement?
A: You do not have to sign a pre-dispute arbitration agreement when entering a nursing home.
Q: The home has great reviews and seems safe. Should we still refuse to sign?
A: Even in a home with positive ratings and reviews, where the staff have a reputation of being kind and caring, don’t sign away the right to a fair trial in the case you might need one. An estimated 5,000,000 people are affected by elder abuse every single year in many forms, including physical, emotional, sexual and financial, and it is not always obvious. Victims of nursing home abuse and neglect reside in both good and bad facilities. They will fare better when pleading their case in front of a jury.
Q: Why shouldn’t I sign an arbitration agreement?
A: There is no advantage to residents in signing pre-dispute arbitration clauses. There are only disadvantages. Here are just a few of the reasons why pre-dispute arbitration does not benefit residents:
- A private arbitrator, instead of a judge, decides the outcome of a dispute.
- There is no jury.
- Arbitration does not have to follow the evidence rules and can introduce hearsay evidence against the resident.
- Decisions are always final, barring extraordinary circumstances, so you cannot appeal a decision you disagree with.
- Decisions are almost always confidential so that the facility’s record of wrongdoing remains secret.
- Arbitration is a business. Arbitrators have a financial incentive to fight for the nursing home in the hope that the business will again hire the arbitrator. This hugely disadvantages residents.
- Arbitration can be far more expensive for a resident than a lawsuit in court.
These agreements only make it more difficult for residents to seek justice if they are harmed, injured, or neglected.
Q: What rights do residents have?
A: The 1987 Nursing Home Reform Law protects the rights of nursing home residents. Federal and state regulations also provide rights that protect you when confronted with signing an arbitration agreement.
- Right to a Dignity and Respect
- Right to Safety
- Right to Participate in Care Plans
- Rights to Privacy and Confidentiality
- Right to Raise Grievances
- Right of Access to Visitors
- Rights Regarding Financial Affairs
- Right to Personal Property
- Rights During Discharge/Transfer
- Rights in Paying for Your Care and Receiving Medicare and Medicaid
- Right to Stay in Your Facility
- Rights as a Citizen and a Facility Resident
If you signed an arbitration agreement, long-term care residents’ still have these rights and protections. But all legal matters in violation of these rights will require resolution outside of the courtroom. You can learn more about nursing home residents’ rights in Illinois from Levin & Perconti’s nursing home abuse and neglect attorneys here. Federal Regulations supporting resident rights can be found at 42 CFR 483. State regulations supporting resident rights can be found at 77 IL Admin Code 300.
Q: How do I refuse to sign the agreement language in my admission contract?
A: When you refuse to sign an arbitration agreement, most often included in the admission contract, CROSS OUT that section and put your initials and the date next to it to acknowledge your dismissal of the arbitration. If the agreement is a separate form, DO NOT SIGN IT. If you are confused and have questions, DO NOT SIGN it until you the answers you need to make your most informed decision.
Q: Will I be denied admission or be evicted if I don’t sign?
A: A nursing home cannot deny you admission or discharge you because you do not sign an arbitration agreement. If your family is seeking long-term care and confronted with a contract and given the ultimatum to sign or denied admission, we strongly suggest you talk to an attorney before signing it. If possible, you could also reconsider your long-term care facility choice.
Q: What if I already signed the agreement? Can I do anything to undo it?
A: If you sign an arbitration agreement and are later hurt because the facility was negligent or a staff member or fellow resident intentionally injured or harmed you, you will NOT be able to hold the nursing home accountable in court.
If you signed an arbitration agreement, you may rescind the contract within 30 days.
Q: What do I do if I feel pressured to sign?
A: Avoid feeling pressured to sign by being informed. And be clear in your communication with administrators and staff that if a dispute occurs, you will decide what steps to take, and an arbitration agreement is not in the best interests of yourself or loved one.
Q: I have been requested to sign that I agree with understanding how arbitration works? Should I sign that?
A: When reviewing your contract, the nursing home staff responsible is supposed to explain your arbitration agreement to you. They may also ask you to acknowledge that you understand the language even if you disagree to it. If they require you to sign that you understand, make sure you are not signing that you agree to the arbitration agreement. If the signature line is the same, DO NOT SIGN. If you are still confused, DO NOT SIGN and instead consult with an attorney.
How To Identify Arbitration Language in a Nursing Home Agreement
When prompted to sign a nursing home agreement of any sort, ask if the contract contains a mandatory arbitration agreement or other damaging language that would make it difficult for a resident or family member to hold a nursing home accountable for any wrongdoing. If it does, we recommend that you do not sign it.
While all contracts may differ, below is an example of a provision of a simple mandatory arbitration clause that may appear in a nursing home contract.
“Any controversy or cause of action resulting from or relating to this contract or any breach thereof shall be settled by arbitration before the American Nursing Home Arbitrators association. The number of arbitrators shall be three. The place of arbitration shall be Chicago, Illinois. Illinois law shall apply.”
Suppose the rights of your loved ones have been violated. In these unfortunate situations, you will want to position the accountability of those actions on the responsible party and help prevent the mistreatment from happening again by letting others know via a public trial. All residents deserve their day in court should they become injured, ill, or fatally harmed due to someone else’s negligence.
Chicago’s Nursing Home Abuse & Neglect Lawyers
At Levin & Perconti, we have the experience and resources to investigate claims and are currently standing up to violators who choose not to protect residents and staff from harm. We have experience in interpreting nursing home agreements and know when our clients have been misguided and mistreated. Call us toll-free at 1-877-374-1417 or 312-332-2872 to request a free, confidential consultation handled by one of our skilled attorneys.
Source: Consumer Voice for Quality Long-Term Care, DON’T SIGN—SAY NO TO ARBITRATION Fact Sheet, 2020