Forced Arbitration in Nursing Homes
The attorneys at Levin & Perconti strongly advise nursing home residents and families to never sign arbitration agreements with long-term care facilities. An arbitration agreement in and of itself is not inherently a bad thing, but when it comes to nursing home contracts, residents and their families find themselves in legal agreements they may not fully understand.
The good news is that you have the right to say no to arbitration agreements presented by long term care facilities.
- What Is an Arbitration Agreement?
- What Is Forced Arbitration?
- Where Are Arbitration Agreements Found Within Nursing Home Admission or Registration Documents?
- Declining to Sign an Arbitration Agreement
- More about Forced Arbitration
- Examples of Disputes You Cannot Sue for After Signing Arbitration Agreements
- Dangers of Signing a Nursing Home Arbitration Agreement
- Current Federal Legislation Concerning Forced Arbitration
- How Can Levin & Perconti Help?
What Is an Arbitration Agreement?
Arbitration agreements are common in employment, insurance, credit card, car loan, and long-term care facility contracts. The arbitration process settles any legal claim or dispute, meaning you cannot file a lawsuit and go before a judge or jury in a court of law to have your case decided.
If you sign an arbitration agreement, you’re agreeing that only a private arbitrator will settle any potential claims for negligence or wrongdoing that you have against the nursing home, meaning you’re voluntarily relinquishing your right to an impartial trial with a judge and jury.
Instead, a private arbitrator will hear both sides’ arguments in a legal matter and decide the outcome. Using arbitration to decide legal matters allows long-term care facilities or nursing homes to keep the dispute hidden from the public and essentially denies you an opportunity to hold staff members and the establishment accountable for negligence or wrongdoing. This can also prevent the injured party from recovering the maximum amount of compensation that they would otherwise receive in a regular court of law.
What Is Forced Arbitration?
Arbitration agreements in nursing home contracts have one purpose — to protect the nursing home or the corporation that owns it. These arrangements often discriminate against vulnerable populations like the elderly, and new residents may feel like they cannot question the documents they are signing. When the nursing home says you must sign their agreement to become a resident and an arbitration provision is buried in that document, they’re essentially forcing you to relinquish your rights.
It’s important to note that arbitration is usually more expensive than a lawsuit and often, the arbitrators in nursing home disputes do not have the best interests of the resident in mind.
Every resident or responsible family member signing a contract with a nursing home should look for an arbitration clause and refuse to agree to it. Even if an arbitration agreement is included in a registration packet, a nursing home cannot require you to sign it, and can’t deny your admission to the facility for that reason. Many people unwittingly give up their rights to bring claims in a court of law for nursing home abuse, neglect, or personal injuries because they overlook the arbitration clause in the contract they signed to become a resident.
Where Are Arbitration Agreements Found Within Nursing Home Admission or Registration Documents?
When reviewing nursing home documents, look for hidden arbitration provisions. Especially be on the lookout for any wording requiring you to sign or agree to certain conditions for dispute resolution for admission.
Arbitration agreements can be standalone documents or may be included as a clause within a lengthier agreement. Be sure to review the entirety of all paperwork before signing. Avoid signing any additional documentation that conflicts with a standard admission agreement. Additionally, beware of general consents for treatment or any provisions asking you to waive liability or mentioning binding arbitration as a requirement.
When in doubt, seek the guidance of a lawyer or an elder advocacy organization. An attorney with knowledge in this area can review a contract to ensure you or your family member are adequately protected.
Declining to Sign an Arbitration Agreement
A nursing home cannot deny you admission solely for declining to agree to arbitration. When dealing with nursing home contracts and admissions paperwork, here are a few things to keep in mind:
- If you ever feel pressured or are unsure of what you’re signing, don’t sign it.
- If you don’t agree to arbitration or any other part of a nursing home contract, cross out the section you are refusing using a pen and print your initials and the date next to each eliminated clause.
- If the arbitration agreement is a separate document – not a section within the admissions agreement – avoid signing altogether.
More about Forced Arbitration
There are recent regulations that curb forced arbitration for 1.5 million nursing home residents. Under the 2019 federal regulatory changes, nursing homes and long-term care facilities can use arbitration or offer it in the contract, but they can’t require residents to agree to it. No matter what a nursing home employee might tell you, no one is required to sign an arbitration agreement as a prerequisite for long-term care facility admission. The facilities must comply with a host of conditions pertaining to arbitration agreements per the 2019 rules, including:
- Residents do not have to sign as a requirement of admission or to continue receiving care.
- After signing, the resident has 30 calendar days to revoke any consent to arbitration.
- Facilities must explain the arbitration provision to a resident or representative in an understandable way and they must get confirmation that the signatories understood the arbitration explanation.
- Both parties must agree on the selected arbitrator.
- The selected venue must be convenient for both parties.
- The facility can’t discourage or prevent the resident from speaking with any local, state or federal authorities.
- When a dispute is resolved in arbitration the facility must keep a copy of the signed agreement and the arbitrator’s final decision for 5 years. These agreements are binding and a record of the same must be available for inspection by the Medicare authorities.
Examples of Disputes You Cannot Sue for After Signing Arbitration Agreements
During your or your loved one’s residency in a nursing home, problems or disagreements can happen. With an arbitration agreement in place there are a host of harms, wrongdoings, and mistakes that you can’t sue the facility for because you agreed to arbitration as the sole dispute resolution method.
Examples of things that can go wrong in nursing homes for which you’ll be unable to file a lawsuit include:
- Medication mistakes: Nursing home employees might give residents the wrong medications or dosages. These medication administration mistakes can cause serious health issues and exacerbate existing conditions the medicines were intended to alleviate.
- Painful bedsores: Nursing home residents can develop bedsores, also called pressure ulcers, due to neglect. These painful ulcers can develop when an immobile patient isn’t regularly turned or properly positioned in a bed or wheelchair, or when in a cast.
- Negligent injuries: Injuries such as broken bones, torn muscles, bruising, lacerations, and more serious injuries from falls can result from caregiver negligence or abuse.
- Malnutrition and dehydration: Some long-term care residents are entirely dependent on their caretakers for eating and drinking. Nursing home staff members must look after the nutrition and hydration of those patients that have specialized diets or cannot access facility cafeterias. Failure to properly and adequately nourish these patients can lead to illness and even death from severe malnutrition and dehydration.
- Abuse and assault: You would expect a nursing home to be a safe place for you or your family member. However, this isn’t always the case. Sometimes, residents can fall victim to various forms of abuse and assault from fellow residents or staff members. Examples of abuse in nursing homes include: emotional abuse, physical abuse, abandonment, basic needs neglect, self-neglect, and financial exploitation.
- Sexual assault: Unfortunately, rapes and sexual assaults of vulnerable seniors do occur in long-term care facilities.
- Preventable disease outbreaks: Federal regulations require nursing homes to take measures to prevent the spread of infection, illness, and death due to disease outbreaks, as was seen recently with COVID-19.
- Theft: Residents are vulnerable to theft by caregivers. Sometimes, nursing home staff mismanage or even steal money or belongings from residents.
Per arbitration agreements, if you or your family member suffers any of the above types of harm while living at a long-term care facility, the establishment will not be held fully accountable. Ultimately, the compensation you receive will almost always be significantly lower than what is fair under the circumstances and per your losses.
Dangers of Signing a Nursing Home Arbitration Agreement
Many vulnerable long-term care patients are forced into signing arbitration stipulations that can significantly limit a facility’s financial responsibility for wrongdoing.
Arbitration is similar to a trial but there are several key differences, including:
- Both sides present their case and evidence before an arbitrator rather than a jury.
- Parties are not necessarily required to adhere to state or federal rules for providing evidence. Hearsay or unsubstantiated information is often admissible in arbitrations.
- The arbitrator is not always required to apply the governing law set out in the agreement.
- Juries often treat victims of nursing home abuse and neglect more fairly – especially when, in contrast, a particular arbitrator is chosen by the facility and is likely biased toward the defendant.
- Unlike a trial decision, you have no avenue or right to appeal an arbitration decision.
Under an arbitration agreement, you are barred from filing a lawsuit to proceed to a trial before a judge or jury in a court of law. Additionally, you surrender the opportunity to negotiate a fair financial settlement. The nursing home abuse and neglect lawyers at Levin & Perconti have obtained substantial awards for injured clients after the preventable harms they endured, including the top 3 nursing home verdicts in Illinois. Contacting an attorney ensures that you will receive maximum compensation for your case. Cases Levin & Perconti has handled on behalf of nursing home residents and their families include:
Our firm achieved this record-breaking verdict on behalf of an 85-year-old woman who suffered injury after a nursing home mismanaged her medications. This result was the highest Illinois Nursing Home Care Act verdict received since 2006, when our firm achieved another record-breaking Illinois Nursing Home Care Act verdict of $2.9 million.
An 88-year-old assisted living facility resident developed severe and infected bedsores that ultimately led to her death. Her family was awarded this sizable compensation on her behalf.
A client that suffered from severely infected bedsores at a nursing home over four years won this large settlement against the facility and her physician.
This case resulted in a verdict against a nursing home that failed to manage a conflict at its establishment arising from the violent behavior of a resident, causing a fall and hip fracture that led to the death of a 79-year-old fellow nursing home patient.
Current Federal Legislation Concerning Forced Arbitration
With nursing home residents still falling prey to forced arbitration and unwittingly giving up their right to a trial in a public court, congressional legislative efforts continue.
The Forced Arbitration Injustice Repeal Act (FAIR Act) was reintroduced in February 2021 in the U.S. House of Representatives. That same year in the following month, March 2021, the Senate introduced companion legislation. The House bill had passed in 2019 but died after the Senate failed to act on it. Both bills aim to protect Americans’ 7th Amendment “right to seek justice and accountability through the court system.”
In November 2021, the House Judiciary Committee ordered the bill reported with amendments. This means a new version of the bill still needs to advance through a few more steps before becoming a law. After the bill is reported, the U.S. House of Representatives will debate it and vote on it before it’s referred to the Senate and then the President for final approval and signature to become law.
The proposed FAIR Act bans forced arbitration clauses in employment, consumer, and civil rights cases. Under this law, consumers and workers can agree to arbitration after a dispute occurs rather than being forced to agree to it before it happens. As consumers and per this legislation if it were to pass, people seeking admission to nursing homes would be protected from giving up their right to a trial during the registration process.
Fairness in Nursing Home Arbitration Act (H.R. 2812)
Another piece of federal legislation introduced on April 22, 2021 specifically addresses the problem of forced arbitration in nursing homes. Levin & Perconti has been active with many legal and elder rights groups in urging our representatives to support this bill. H.R. 2821 would stop skilled nursing facilities and those receiving federal funds from using pre-dispute arbitration agreements when admitting residents. This bill is in the first stage of the legislative process.
Our lawyers strongly support this legislation to strengthen protections for nursing home residents. The new law would stop nursing homes from even asking residents and families to sign arbitration agreements.
How Can Levin & Perconti Help?
Levin & Perconti has extensive experience with nursing home law and interpreting nursing home agreements. We have represented hundreds of individuals and families going up against abusive or negligent facilities and have helped them receive much-deserved compensation for their suffering. Call us today for a free, confidential consultation with one of our nursing home attorneys.