What To Know About Arbitration Agreements In Nursing Home Admissions And Your Legal Rights

Admission to a nursing home is a difficult and anxiety-inducing process – whether you are admitting a loved one or being admitted yourself. Almost always, nursing home admission happens among a flurry of other activities and concerns – addressing urgent health problems, qualifying for Medicaid, selling a home, and more.

At the same time, a family must sit down with a nursing home administrator and review a pile of paperwork concerning admission and treatment. One of the provisions in many standard nursing home contracts will be a “Pre-Dispute Arbitration Agreement”. The Centers for Medicare & Medicaid Services (CMS) allows long-term care facilities to include pre-dispute, binding arbitration agreements within their admission materials. This has been an issue in dispute for years and the American Bar Association responded in protest to the CMS decision allowing these arbitration provisions in nursing home contracts.

What is a “Pre-Dispute Arbitration Agreement” in a Nursing Home Contract?

Arbitration is a process in which disputes – including those involving potential legal issues – are resolved privately through a neutral third party instead of going through the court system. Theoretically, this saves both sides time and money and guides them toward a suitable resolution of the problem. By going through a private arbitrator, both parties waive their Constitutional right to a trial by jury and agree that the decision by an arbitrator will be binding.

Those on the administrative side at a nursing home know exactly what they are getting into when arbitration clauses are in the agreement. The trouble is, patients and families entering into a nursing home contract usually do not know what this provision really means. Often, they will sign admissions paperwork without giving an arbitration clause second thought – not knowing they are signing away a fundamental legal right in the event something goes wrong.

Concerns by the ABA and consumer groups echo concerns that the circumstances of nursing home admission do not allow informed decision-making about important legal rights in the future. This is a time of stress, fear, and confusion – not a time that families can make critical decisions affecting future recovery in a court of law.

Fortunately, the recent CMS rule on arbitration clauses allows them to be included in a contract, but not required as a condition of admission.

This means that a nursing home patient can still be admitted to a facility even if they or their family do not sign the arbitration agreement.

Why Should a Patient or Family Not Sign a Pre-Dispute Arbitration Agreement?

There are several reasons, such as:

• Arbitrators and arbitration panels tend to be business-friendly and likelier to take the side of an organization over an individual when disputes arise.

• There is no judge, jury, or rules of courtroom procedure to guide events.

• Arbitrators can allow hearsay arguments without following a state’s rules of legal evidence.

• Arbitration rulings are final, binding, and can only be appealed under rare circumstances.

• Arbitration is a private process, while court cases are public and subject to greater accountability.

• Arbitration can often end up more expensive for individuals than filing a lawsuit in court.

If You or Your Family has Questions About Arbitration Agreements in Nursing Home Contracts, Call the Nursing Home Litigation Attorneys at Atkins Brezina, PLLC

Before signing any type of arbitration agreement, nursing home patients and their loved ones should give careful consideration and remember their legal rights. You are not required to sign an arbitration agreement to be admitted to a nursing home, and you may have important legal rights and remedies available in the future if anything goes wrong.

Our attorneys at Atkins Brezina, PLLC, have significant experience addressing nursing home issues and will be glad to review your concerns and guide you on the best path available. If you or your loved ones have any questions, feel free to contact our Knoxville nursing home malpractice lawyers at Atkins Brezina, PLLC by phone at 865-500-3121 or online today.

Source:

federalregister.gov/documents/2019/07/18/2019-14945/medicare-and-medicaid-programs-revision-of-requirements-for-long-term-care-facilities-arbitration