Nursing Home Residents Forfeit Rights Through Arbitration Clauses

In February of this year, the U.S. Supreme Court ruled that a relative of a resident who died in a nursing home could not file a wrongful death lawsuit because of an arbitration agreement they signed when admitting their loved one into the facility. 

Realizing that you may need to put your loved one in a nursing home can lead to feelings of guilt and sadness. The reason you have these feelings is because of the reputation of nursing homes in the United States have. Putting your loved one in a nursing home means that you’re leaving them in the care of others. The reality is, no one is ever going to treat your grandma with the same love, care and understanding that family members can. However, because of jobs, young kids and other daily responsibilities, caring for elderly loved ones can become infeasible. 

When you make the decision to put your loved one in a nursing home, you’re not doing it because you want to. You’re doing it because you likely have no choice. No matter the reason, you still expect the nursing home to care for your loved one in a way that keeps them safe and makes them feel secure. You might be surprised that more incidents are popping up around the country of nursing homes slipping arbitration clauses into enrollment paperwork. Families may unknowingly sign the agreement without fully understanding what they’re doing.

This is leaving families in a difficult position. When you register your loved one to live a nursing home, you don’t expect them to be a victim of nursing home abuse or neglect. But should that situation occur, you want to be able to hold someone accountable for their injuries or loss of life. 

What is an arbitration clause?

An arbitration clause is a clause in a contract that requires parties to resolve their disputes through an arbitration process. In other words, an arbitration clause forces parties in a legal dispute to find a resolution outside of the courts. 

Nursing homes are using arbitration clauses for three reasons:

1. The legal costs associated with arbitration are lower.
2. Arbitration returns lower rewards for victims of personal injury and wrongful death.
3. Dispute agreements are confidential.

How does an arbitration clause affect my loved one in a nursing home?

A major problem with arbitration agreements is that they take away one of the most important rights guaranteed by the United States and Texas constitution: the right to a trial by a jury of peers. 

Another problem is arbitration agreements require all claims to be submitted to an individual or individuals who want to make sure they get future business. This ends up resulting in arbitrators “splitting the baby” in order to avoid upsetting either side. In other words, you won’t get what you’re owed during arbitration talks. 

How should I approach filling out nursing home paperwork?

When a person signs paperwork admitting themselves or a loved one into a nursing home, they will inevitably be presented with an arbitration agreement somewhere in the paperwork. When you are filling out the paperwork for your loved one, please be on the lookout for it. 

In fact, the best way to approach signing nursing home paperwork would be to ask, “is there an arbitration agreement in this?”  

Once it is found the next question needs to be, “is the admission to the nursing home dependent on whether I sign this arbitration agreement?”  The answer should be “no” because federal law forbids arbitration clauses being a condition of admission. (See 42 CFR §483.70(n)(1))  

If the facility’s answer is “yes”, do the following steps:   

1. Walk away.
2. Contact Texas HHSC to inform them that a nursing home is operating in violation of federal law.
3. Go find another nursing home that is not violating federal law.

The Carlson Law Firm can help

It’s important that you understand just how an arbitration agreement can affect you and your loved one’s rights. You do not have to consent to an arbitration agreement in order for your loved to be admitting into a skilled nursing facility. If your loved one was injured or died while in the care of a nursing home, contact us. Our skilled nursing home abuse and neglect attorneys are ready to offer the compassionate legal representation you need in cases of elder abuse and neglect.