Nursing Home Contracts: Don't Sign Away Your Rights
One of the most heart-wrenching choices we ever have to face in our lives is deciding whether or not to place a loved one in a nursing home. Finding a clean and well-respected facility with a good record of quality of care is difficult at best. What’s even more surprising is that hidden amongst the intake paperwork is an often-overlooked and seldom-explained sentence, paragraph or separate document that will take away your right to hold the nursing home accountable should abuse or neglect happen to your loved one.
It is a binding arbitration clause and it strips the family of its constitutional right to a jury trial.
If you sign an arbitration clause in a nursing home admission contract, you will have little recourse if your loved one is neglected or abused. Your access to the court and the justice system, a fundamental right, will have been signed away with this clause—often, without your knowledge or understanding.
Arbitration is not inherently bad, and people are free to agree to arbitrate just about anything they could litigate. Often, arbitration results in fewer expensive, drawn out lawsuits, especially in a commercial setting. However, nursing homes have stacked the odds in their favor by inserting language into their intake contracts that makes arbitration mandatory and binding instead of optional and non-binding. Should a dispute arise, this clause means your ability to seek damages and notify the community about the nursing home’s behavior is taken away.
Even worse, the arrangement encourages arbitrators, who naturally want repeat business, to rule in favor of the nursing home –no matter how egregious the neglect. If only the nursing home can choose the arbitrator, how likely is it for the arbitrator to remain neutral? Not all arbitrators are or will be biased, but the potential for abuse exists.
The Harvey Law Firm suggests that families admitting a loved one to a nursing home not sign the arbitration agreement or insist that a new contract be written that, at a minimum, makes arbitration optional and non-binding. Also, if you are drafting or revising a power of attorney for healthcare or legal and financial matters, you can include a clause stating that the power of attorney does not have the authority to agree to binding arbitration on your behalf.
These are the best ways to preserve your rights. Also, please know that if your loved one is already a resident of a nursing home facility, and the facility tries to get them to sign a binding arbitration clause, federal law prohibits the facility from discharging the resident if he or she refuses to sign it.
