Sunday, September 06, 2015

Looking For A Nursing Home? Watch Out For Pre-Dispute Arbitration Clauses Buried In Long, Complex Admission Agreements Authored By Lawyers

From a story in nj.com:
  • When a family goes through the process of choosing a nursing home, assisted living or rehabilitation center, they develop a sense of trust and an expectation that the facility will provide good care to their loved ones. Admitting a family member to a long-term care facility is a decision typically made with little time to prepare. It is also a decision that involves strong, difficult and, at times, conflicting emotions. Because family members of nursing home residents may not be able to be present at all times, they may be afraid to speak-up or disagree for fear of "rocking the boat."

    Unfortunately, some companies take advantage of this trust and reluctance to disagree. Whenever someone moves into a health care institution, they or their family members are normally required to sign an admission agreement. It is a long and complex document written by lawyers that is usually filled with legal jargon that a layperson may find difficult to understand. When giving the document to family members, many admissions directors quickly flip to the signature blocks and just say, "sign or initial here," which families almost always do without actually reading documents' contents, let alone understanding it.

    One of these signature blocks typically involves pre-dispute arbitration. By signing, the resident and their family completely give up their rights to a jury trial if something goes wrong, even in the event of the worst abuses, such as rape or murder. Instead of going to court, family members would go to secret arbitration.

    Long-term care companies prefer arbitration because the proceedings and the facts of the incidents themselves remain confidential. Additionally, studies have clearly shown that arbitration awards tend to be much lower than jury trial awards, and there are no court systems to monitor the arbitrators' compliance with actual law. Because of this, many arbitrators are repeatedly hired by the health care companies, creating a perception of bias.

    Despite the fact that arbitration is rarely beneficial for the families of the victims in these circumstances, the documents and materials given to them upon arrival to the facility are designed to persuade the families into thinking otherwise, focusing on how arbitration saves time and money. This is generally not true, and in almost every case, it only saves time and money for the facility or long-term care company.

    In these resident contracts, the arbitration documents must be signed "pre-dispute," or before someone is hurt or killed and no lawyers are available to help explain the document's contents or the arbitration process to the families. This begs the question: "If arbitration is such a great deal for everyone, why not just agree to it after an incident occurs?"

    Unfortunately, the reason why these documents must be signed pre-dispute is that no one would logically agree to their terms once they understand its contents. Families are unknowingly being coerced into signing these documents before being able to consult with counsel to help them advocate for their rights.

    In the event your family is faced with making this difficult decision, know that you are not required to give your rights away without getting anything in return. Before you sign, learn as much as you can about your options for protecting your rights and the rights of your family members living in long-term care facilities. At the very least, be sure you consult with legal counsel.
For the story, see Read the fine print: Pre-dispute arbitration language in long-term care contracts strips families of their rights.

In a related story, see An end to mandatory arbitration agreements in nursing homes? (Nursing home and patient advocates alike say a new proposed rule from the CMS forbidding such facilities from requiring residents to sign binding arbitration agreements is long overdue. But some say parts of the proposed rule might create legal gray areas for patients and nursing home facilities).

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