The short answer is “no”. A nursing home cannot require a prospective resident to sign an arbitration agreement as a condition for admission.
Moreover, nursing home arbitration agreements are typically so one-sided in favor of the nursing home that it’s almost never in a resident’s best interest to sign the agreement. For instance:
- By signing an arbitration agreement, an elderly patient is waiving their right to a jury trial. It’s commonly believed that jurors will have much more sympathy and understanding for an elderly resident who was neglected or abused than an arbitrator.
While arbitrators should be neutral, they often side with nursing homes to guarantee a continuing business relationship. Put simply, an elderly nursing home resident is never going to give them future work. By giving favorable outcomes to the care facility, they entice nursing home owners to use them for future arbitrations.
- Evidentiary rules applicable to court proceedings do not apply in arbitration. Thus unsubstantiated hearsay and rumors can be utilized against an elderly victim.
- Arbitration determinations are typically confidential. Nursing homes live in fear that injuries and death caused by neglect will become public. In egregious cases, the fear of a public trial will often lead them to make a settlement offer for full and fair compensation. When there is no possibility of their abuse or neglect becoming publicly known (because of the confidentiality of the arbitration process), they are significantly less likely to make a fair settlement offer.
- Arbitration awards are typically limited, leaving many parties inadequately compensated for their injuries. If you agree to limit damages, obviously such agreement benefits only one party – the nursing home. There is no reason that a resident should ever limit possible damages arising from injury or death.
- It is difficult, if not impossible, to appeal an arbitration decision. Typically, unless there was significant abuse of discretion or wrongdoing, the arbitrator’s decision will be binding.
For these reasons, we recommend that residents never agree to sign an arbitration agreement before moving into a nursing home.
If you or a loved one is being pressured into signing an arbitration agreement, please call us. We know the pressure tactics and persuasive measures that are often employed as part of the admissions process; we can help in these situations.
About Nursing Home Arbitration Agreements
It is common for Florida nursing homes to ask prospective residents to sign arbitration agreements before admission. While admission cannot be contingent upon the signing of the agreement, this is rarely explained to the elderly and their families. As a result, many residents execute the agreement thinking that they will be denied admission and unable to obtain long-term care if they refuse to sign.
Florida nursing home arbitration agreements are increasingly becoming prevalent in for-profit care facilities, making them a primary point of contention in many nursing home injury and wrongful death lawsuits. As noted above, nursing homes stand to greatly benefit in the event of an injury or death if there is an arbitration agreement in place, which is why many (perhaps most) nursing homes are now pushing these agreements on new residents. The bottom line is that you do not need to give up your rights in order to secure nursing home admission.
What Is a Nursing Home Arbitration Agreement?
Arbitration is an alternative dispute resolution procedure that bypasses court proceedings. Rather than litigating in court, the parties present arguments to a private neutral arbitrator or arbitration panel who issue(s) a binding decision.
The Florida Arbitration Code[1] requires that arbitration agreements comport with basic contractual guidelines, including that the agreement is fair to both parties. Additionally, arbitration agreements must explicitly describe the rights being waived; otherwise, a court may deem the agreement unenforceable.
How Does a Nursing Home Arbitration Agreement Differ from a Mediation Agreement?
Arbitration and mediation are similar in that they are alternatives to traditional litigation. Both employ a neutral third party to oversee the process; however, mediation is typically a non-binding process, while arbitration is a binding process designed to act as a substitute for court proceedings.
During arbitration, a single arbitrator or a panel of arbitrators oversee the case, make decisions regarding evidence, and provide written opinions, much like judges. If there is to be a panel of arbitrators, the most common practice is for each side to select an arbitrator; the two arbitrators then select a third arbitrator to complete a three-person panel. A majority vote of the panel members decides the case, and their decision is binding on both parties.
Mediation allows two parties to talk through their issues and to make decisions about the dispute with the help of a third-party mediator. Unlike arbitration, a mediator is not allowed to decide the case or direct parties to make a resolution. Instead, whether an agreement is reached is up to the parties.
What Happens if I Don’t Agree to a Nursing Home Arbitration Agreement in Florida?
While many nursing homes would like to make prospective residents believe that arbitration agreements are a mandatory requirement of admission, federal law prohibits long-term care facilities from discharging, transferring, or retaliating against an elderly individual who refuses to sign an arbitration agreement.[2]
When someone is admitted to a Florida nursing home, the facility will require that the resident sign a pre-admission contract outlining terms, rights, expectations, and remedies. Many pre-admission agreements contain clauses stipulating that legal disputes occurring between the nursing home resident and the facility will be settled by arbitration instead of through a jury trial or court of law.
As a result, residents considering a nursing home should understand that the “arbitration agreement” may not in fact be a separate agreement. Rather it may be part of the terms of the nursing home contract.
Many elderly patients thus are unaware that they are signing an arbitration clause upon entering a nursing home. This often occurs because employees do not adequately explain admission forms, the resident has poor eyesight and is unable to read the agreement, or the clause is buried within such an extensive number of forms they feel overwhelmed and sign without considering the terms. Further, even if they are aware of an arbitration clause, prospective residents are rarely informed that they cannot be forced to sign the agreement.
What nursing homes rarely tell prospective patients is that an agreement to arbitrate cannot be forced upon a resident or their family. In other words, if a resident does not agree to arbitration but accepts the remaining terms, the nursing home is restricted under federal law from rejecting the resident’s application based on that fact.[3] Nursing homes are also prohibited from retaliating against or otherwise treating a resident differently if they refuse to sign an arbitration agreement.
If you believe that a loved one was denied admission to a nursing home for refusing to sign an arbitration agreement, or if your loved one is being treated differently for refusing to sign an arbitration agreement, we can help. For nearly two decades, the Flammia Elder Law Firm has been successfully helping clients challenge unfair arbitration clauses and illegal admission denials. We can tenaciously fight to help you or your loved one secure long-term nursing home care without waiving your legal rights.
What Are the Advantages and Disadvantages of Nursing Home Arbitration Agreements for Residents?
Advantages of Arbitration Agreements
Traditional litigation takes significant time and resources, making arbitration a desirable alternative. Arbitration has less rigorous procedures and discovery, which often results in fewer expenses for both parties and a more expeditious result.
In many lawsuits, the possibility of incurring exorbitant legal costs can dissuade legitimate lawsuits or allow wealthier defendants to outspend less-affluent plaintiffs, resulting in an unfair settlement or dismissal. In cases such as these, arbitration may provide an alternative that is more cost-effective and, consequently, may result in a more favorable outcome for the affected party.
However, because most nursing home injury lawyers accept nursing home injury and wrongful death cases on a contingency fee basis, those who are injured (or the families who have lost a loved one) do not need to pay lawyers as a case progresses. As a result the concern for litigation costs for injured plaintiffs is not as much of a concern as it would be if the person was paying a lawyer on an hourly basis as the case was being litigated.
It’s important to understand that the parties to a lawsuit or conflict can always agree to an arbitration of their matter at any time. As a result, if an injury occurs at a later date, the injured resident and the facility always can agree to arbitrate the matter rather than going to court. The benefit for residents in this circumstance is that they are able to negotiate the terms, they are able to decide whether they are agreeable to having the arbitration confidential, and they can require that damages not be capped.
Disadvantages of Arbitration Agreements
The primary disadvantages of arbitration agreements and clauses for residents are those noted above. As the nursing home (or their lawyers) will have prepared the agreement, the terms of the arbitration agreement will naturally favor the nursing home – not the resident.
It’s Important for Nursing Home Residents to Understand the Operational and Financial Incentives for Nursing Homes to Cut Costs, which is Often Behind Most Injuries and Wrongful Death
The long-term care services industry is substantial in the United States, consisting of over 67,000 facilities serving an estimated 9 million Americans.[4] Of these facilities, 3,772 nursing homes and assisted living facilities with approximately 176,000 beds are in Florida.
The majority of nursing home revenue comes from Medicare and Medicaid, which typically pay less than private insurance policies. To offset these lower reimbursement rates and increase profits, many facilities cut staffing levels to decrease costs. Consequently, rampant abuse and neglect occur.
While the objective of understaffing facilities is to decrease overhead, the unintended effect is an increase in litigation related to injuries and wrongful death suits. According to a study by the Minority Staff of the Special Investigations Division of the House Committee on Government Reform, over 30% of the nursing homes in the United States have been cited for an abuse violation that had the potential to cause harm to a resident.[5] Nearly 10% of these violations resulted in substantial injuries or death to elderly residents.[6]
Is an Arbitration Agreement Legally Binding?
Once an arbitration agreement is signed, it is typically legally binding and enforceable if it is fair and meets the general requirements of a valid contract.
If nursing home abuse, neglect, or wrongful death occurs, a valid arbitration agreement may bar a resident or their family from filing a claim in court, forcing them into arbitration. Because these agreements typically favor the nursing home rather than an elderly resident, it is usually advisable to avoid entering into an arbitration agreement.
Can I Fight to Invalidate a Nursing Home Arbitration Agreement?
Nursing home arbitration agreements can be invalidated if they are unconscionably unfair or the proper party did not sign the agreement.
While it is possible to invalidate an arbitration agreement, it can be very difficult under Florida law. In many cases, a judge may invalidate some provisions while still upholding the arbitration agreement. Because of the legal complexities involved in fighting an arbitration agreement, it is not advisable to challenge it alone. Our knowledgeable Florida nursing home neglect attorneys have had years of success avoiding arbitration clauses and can advise you of your options.
If you were denied admission to a nursing home for refusing to sign an arbitration agreement or if you or loved one was injured and would like to file a claim but signed an arbitration agreement, our experienced elder law attorneys would like to help.
Call (407) 478-8700 to schedule a consultation to learn how the Flammia Elder Law Firm can help protect your rights and hold nursing homes accountable!
[2] 42 CFR § 483; Medicare and Medicaid Programs; Revision of Requirements for Long-Term Care
Facilities: Arbitration Agreements, Department of Health and Human Services (Jul. 2019), https://s3.amazonaws.com/public-inspection.federalregister.gov/2019-14945.pdf.
[3] Id.
[4] Harris-Kojetin L., Sengupta M., Park-Lee E., et al., Long-term Care Providers and Services Users in the United States: Data from the National Study of Long-Term Care Providers, 2013–2014, National Center for Health Statistics, https://www.cdc.gov/nchs/data/series/sr_03/sr03_038.pdf.
[5] Abuse of Residents Is a Major Problem in U.S. Nursing Homes. U.S. House of Representatives, Washington, DC, Committee on Government Reform, Special Investigations Division, Minority Staff report prepared for Representative Henry A. Waxman (U.S. Gov’t Printing Office 2001).
[6] Id.
