Nursing Homes like to pitch arbitration as something that is entirely voluntary and just as much a benefit to a family whose loved one has been harmed by poor care as it is to the facility. Finally, their hypocrisy has been revealed. The Centers for Medicare and Medicaid Services (CMS), the federal agency which oversees the quality of care provided by corporations to well over a million nursing home residents in the United States recently enacted a rule banning the use by nursing homes of pre-dispute arbitration clauses. This new rule is set to take effect on November 28, 2016. Opponents of forced arbitration have argued for over a decade that their use permits nursing home corporations to consciously understaff facilities and skimp on other important expenses such as training. The nursing home knows that if a death or serious injury results from its poor care or understaffing, it may simply shield itself from liability and justice in a court of law by holding up and seeking the enforcement of its arbitration clause. Arbitration is a secretive process where one to three healthcare lawyers decide the case. Normally, these lawyers are chosen by the nursing home. Most residents and their family members are unaware that they are even signing these arbitration provisions when they review and sign the nursing home’s admissions paperwork since they are usually buried in the middle and typically contained within the fine print.
The nursing home industry has argued that arbitration is voluntary, cheaper and faster than a court case; however, they have revealed their true intention by recently filing a lawsuit to block the new law. A federal court in Mississippi has ruled in favor of the nursing home industry, and now the case is up on appeal. The new law does not ban all arbitration; rather, it simply says that the decision to arbitrate should be made by both parties after a dispute arises. Of course, this would prevent the nursing home industry from continuing to bury and hide these arbitration clauses in the 50 plus pages of admissions paperwork that they rush an elderly resident or their family through at the time of admission.
My advice is: If you are admitting a loved one to a nursing home or assisted living facility, do not sign an arbitration provision. It is voluntary. You are NOT required to sign it. Draw a large “X” through it and strike it out so that it is clear that you do not agree to arbitration. Anecdotal evidence suggests that those residents who do NOT have binding arbitration contracts receive better care from the nursing home. The right to a trial by jury is one of our nation’s most fundamental and important constitutional rights. Do not be tricked into waiving that constitutional right when admitting a relative to a nursing home or assisted living facility.