No one should be required to surrender basic constitutional rights to secure a bed and receive quality care in a nursing home. Yet, this is exactly what is happening in Oklahoma, and nationwide. In order to avoid accountability for negligence and wrong doing, nursing homes are requiring residents and family members to sign admission agreements that include binding arbitration provisions, otherwise be declined admission. Often buried within the fine print, is relinquishing their rights to a trial by jury.
According to a news article in the Oklahoma Watch, in the summer of 2013, an elderly woman became ill and went to the hospital. After watching her health decline, her family decided to place the woman in a nursing home that accepted Medicaid and Medicare. What happened next was astonishing.
Part of the admission process was to sign a packet of documents, including a four-page agreement requiring the family to submit to binding arbitration if the resident or her family had a disagreement related to care. That meant the family could not sue in court, and damages awarded likely would be less. This was a “red flag” to her grandson, a long-term care ombudsman for the state Department of Human Services. He told his family that under the state’s Nursing Home Care Act “residents could not be required to sign away their rights and nursing homes couldn’t use arbitration agreements as part of the admission process.” Due to the woman’s deteriorating health, the family felt “leaving it” and trying to find another place right then and there was not an option; they signed the papers.
This incident is not isolated. Although nursing homes are prohibited from requiring residents to agree to arbitration as a condition of admission, such agreements are increasingly common. A mandatory arbitration agreement is often overlooked within a pile of admissions documents especially by anxious family members faced with making quick decisions for their loved ones. There have no time to review the forms or seek legal advice. But, signing an arbitration agreement means that if something goes wrong – mom slips on a wet floor or develops bed sores or dad dies due to negligent care, family members cannot file a lawsuit. Instead, the dispute goes before an arbitrator.
Nursing home arbitration clauses are almost never in a resident’s best interests. Here are some of the hidden risks of nursing home arbitration clauses:
- They strip consumers of their constitutional right to a trial by jury even in the case of serious injury or death.
- They are more costly because arbitrators charge the parties for services rendered. (The nursing homes share is paid by its insurance company).
- Hearings are conducted privately (not in a courtroom)
- Arbitrators are private individuals who may be chosen by the nursing home – not publicly elected or appointed officials, like judges.
- Details of the proceedings are not of public record.
- The amount awarded — if any — is usually less if an arbitrator hears the case than if a case went to trial.
- The decision of the arbitrator is final and there is no appeal.
There is no good reason for residents, or family members, to “voluntarily” agree in advance to waive their rights to a trial by jury. Arbitration agreement should be separate and apart from the admission agreement. One way to avoid arbitration agreements is to get admitted first and then refuse to sign the arbitration part. Nursing homes are prohibited from evicting residents without valid cause; failing to sign an arbitration agreement is not one of those reasons.
What about families who did sign? They may rescind an arbitration agreement by giving written notice to the facility within 30 days of signature. After the 30 days, there is no harm in revoking the clause by sending a letter to the facility explaining that you did not understand the implications of signing an arbitration agreement, and therefore you are revoking your consent. You should always keep a copy of the letter and obtain proof of delivery. For the family of the Oklahoma woman, it was unnecessary. She died weeks after arriving at the nursing home. While her family was pleased with the care provided, her grandson is still rankled by the arbitration issue. “State law says you can’t sign away your rights, and that’s the way it should be,” he said.
I urge everyone to protect the rights of our elderly and just say “no” to arbitration agreements. If you are facing a situation where a loved one needs to be admitted to a nursing home, have an attorney review the admissions papers with you to help understand what you’re agreeing to and determine what is in your best interest.
Lawsuit Financial also urges everyone to call your senators’ and/or representative’s office to advocate for eliminating these agreements in nursing home contracts.
Experienced attorney, lawsuit funding expert, certified civil mediator, and award-winning author of the Zachary Blake Legal Thriller Series. The series features super-trial lawyer Zachary Blake handling "ripped from the headlines" legal and political issues of the day. The series currently consists of Betrayal of Faith, Betrayal of Justice, Betrayal in Blue, Betrayal in Black, and Betrayal High, with a sixth Zachary Blake novel due out later this year. To learn more about these topical social justice legal thrillers. please visit markmbello.com. Mark is a member of the State Bar of Michigan, a sustaining member of the Michigan Association for Justice, and a member of the American Association for Justice.