As early as the 1990s, nursing homes and other long-term care facilities have been writing arbitration clauses into their legal agreements. Patients and their families have felt compelled to give up their right to a legal dispute over the facility conditions, even when those conditions led to the death of a resident. Simply put, if your loved one was abused or neglected and you wanted to hire a Charleston nursing home attorney such as The Love Law Firm, to seek restitution, you were unable.
What is an Arbitration Clause?
These clauses are written into the agreements signed upon the admittance of an elder into a care facility, and state that all disputes must be resolved through an arbitration process, rather than through the court system. This may seem like a reasonable concept to write into a contract; after all, no company wants to become entangled in a big, expensive lawsuit over whether or not their facilities met the pristine standards of certain individuals. But when patients are being neglected, or care is being poorly administered, these clauses can tie the hands of justice. Nevertheless, according to the Federal Arbitration Act, an arbitration clause, once signed, “shall be valid, irrevocable, and enforceable, save upon such grounds…for the revocation of any contract.”(9 U.S.C. § 2)
Are Arbitration Clauses Legal?
Long-term care residents, their families, and those holding power of attorney, have long sought to dispute these arbitration clauses, given that they are unconscionable, or unreasonably excessive. However, in multiple court cases occurring in Ohio and Kansas, the courts upheld that these arbitration clauses were not unconscionable, further preventing any action against the care facilities. However, there is good news – new regulations added in 2015 stated that a long-term care facility cannot enter into a pre-dispute agreement with a resident or their legal representative. Additionally, these facilities may not require the signing of a binding arbitration agreement in order to be admitted.
Finally, on September 28, 2016, the Centers for Medicare and Medicaid Services issued a new regulation, known as “the Final Rule”, that completely bans the use of binding pre-dispute arbitration agreements by long-term care facilities. After November 28, 2016, nursing homes are not allowed to even request the signing of a pre-dispute arbitration agreement. This new “Final Rule” is currently in dispute in the Supreme Court, scheduled to be discussed further February 22, 2017.
So, is Arbitration Dead?
Even assuming this legislation passes, however, nursing homes and long-term care facilities are not left entirely defenseless. Post-dispute arbitration agreements are still permissible. This allows negotiations to occur, but in a setting that does not favor either party. Additionally, agreements signed before November 28, 2016 are grandfathered into the program uncontested, allowing prior agreements to stand. This means that disgruntled individuals cannot use the Final Rule to bring suit against the care facility.
Hire A Nursing Home Abuse Attorney Before You Sign
The bottom line in this issue is that nursing homes and long-term care facilities are careful to word their contracts in ways that will benefit themselves during a dispute. Before you sign anything – especially if the word “arbitration” appears in your contract – have an experienced nursing home attorney, such as Chad Love of The Love Law Firm, review your contract to make sure it is legal and in your best interest. And don’t allow yourself to be told by any care facility that signing an arbitration clause is required for admission, because this is simply not true.
For more information, give us a call at The Love Law Firm at (304) 344 5683.
