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Nursing Home Arbitration Requirement

Fairfax Injury Lawyer Brien Roche Addresses Nursing Home Arbitration Requirement

Brien Roche

 

Nursing Home Arbitration Requirement

Nursing home arbitration requirements have been the subject of some litigation over the last many years.  Many nursing home contracts contain a mandatory nursing home arbitration clause requiring that any disputes between the patient and the nursing home,whether it be one of nursing home abuse or otherwise, be submitted to either a single arbitrator or a board of arbitrators for resolution.  That deprives the patient of their right to a jury trial.

It is well established that any intelligent adult can voluntarily waive their right to a jury trial.  The waiver however that exists in nursing home arbitration contracts may, in some instances, be unconscionable because the patient frequently is not the one who is making the decision about admission and the circumstances of admission are normally such that the family and/or decision maker is under the gun to make a prompt decision because the person has to be placed in some facility.

The down side of arbitration of claims against a nursing home is the lack of the right to a jury trial, the increased cost of having to pay one or more arbitrators to decide the case in addition to having to pay your own attorney and the fact that arbitration awards that are decided by arbitrators tend to be smaller awards than cases that are submitted to a Judge or jury for a decision.  In addition, arbitration awards are typically confidential and therefore there is no public record as to what has gone wrong at this nursing home.  A Court decision typically is not going to be governed by any such confidentiality unless there is a settlement that is reached that provides for such.

The one advantage to arbitration as opposed to litigating a nursing home case in Civil Court is that arbitration can be more expeditious, i.e. you get a quicker decision.

On September 28, 2016 the Centers for Medicare and Medicaid Services (CMS) issued a final rule prohibiting nursing homes from using pre-dispute forced arbitration agreements in admission contracts that were dated after November 28, 2016. This rule applies to all skilled nursing facilities that receive money from Medicare and Medicaid which includes the vast majority of facilities in the United States.

In those instances where you or someone on your behalf has signed a nursing home arbitration contract that contains an arbitration clause and you later on want to disown it you need to look at whether or not there is an opt-out provision within the nursing home agreement.  That is, many nursing home agreements have a right to opt-out of the nursing home arbitration agreement within 30 days after you have signed it.  That opt-out provision is intended to give you a chance to “cool off” and to more intelligently review the contract that has been entered into.  In addition, it is possible to claim that the arbitration requirement is simply unconscionable, i.e. that it simply was too much to expect that a person making a decision about nursing home care could intelligently review and evaluate multiple pages of a nursing home contract that contains an arbitration clause probably hidden in the small print.  That argument in Virginia is probably a tough argument to make but it certainly is available.

Enforceability of Arbitration Requirements In Nursing Home Contract

There are a number of factors to be considered in determining whether or not an arbitration agreement within a nursing home contract is enforceable:

  • Although the U. S. Supreme Court in the case of Marmet Health Care Center, Inc. v. Brown indicated that a categorical rejection of arbitration clauses violates the Federal Arbitration Act, there still are instances where these agreements may be held unenforceable.
  • Many nursing home contracts call for arbitration to be conducted by the National Arbitration Forum.  It so happens that entity has refused to partake in such arbitrations over the last many years.  To the extent that the contract language indicates that the National Arbitration Forum was truly intended by both parties to be the arbitrator that may be a basis for voiding the contract.
  • Likewise, some contracts call for the American Health Lawyers Association to be the arbitrator.  This group has a particular pro-defense bias and that may well be a basis for excluding them as the arbitrator and/or voiding the contract.
  • To the extent that power of attorneys have been used to sign such contracts on behalf of the patient, the power of attorney itself may be defective because many power of attorneys do not take effect until disability is determined and further to the extent that they are medical power of attorneys it may be that the decision to enter a nursing home is not a medical decision.
  • Unconscionability of the agreement itself, of course, needs to be looked at closely in that these agreements may be unreasonable in that they favor one party over the other and clearly prevent one party from exercising certain rights.  Vast disparity between the parties may be a basis for voiding the contract.
  • Arbitration clauses that are one sided in allowing the nursing home to litigate but barring the patient from litigating may be defective.
  • Arbitration agreements that shorten limitation periods or require patients to travel significant distances to arbitrate may likewise be deemed to be unconscionable.
  • Arbitration clauses that put enhanced burdens on the plaintiff to prove his or her case likewise may be unconscionable.

For more information on nursing homes see the other pages on this site and for information on arbitration see the pages on Wikipedia

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Nursing Home Arbitration Requirement

Fairfax Injury Lawyer Brien Roche Addresses Nursing Home Arbitration Requirement

Brien Roche

 

Nursing Home Arbitration Requirement

Nursing home arbitration requirements have been the subject of some litigation over the last many years.  Many nursing home contracts contain a mandatory nursing home arbitration clause requiring that any disputes between the patient and the nursing home,whether it be one of nursing home abuse or otherwise, be submitted to either a single arbitrator or a board of arbitrators for resolution.  That deprives the patient of their right to a jury trial.

It is well established that any intelligent adult can voluntarily waive their right to a jury trial.  The waiver however that exists in nursing home arbitration contracts may, in some instances, be unconscionable because the patient frequently is not the one who is making the decision about admission and the circumstances of admission are normally such that the family and/or decision maker is under the gun to make a prompt decision because the person has to be placed in some facility.

The down side of arbitration of claims against a nursing home is the lack of the right to a jury trial, the increased cost of having to pay one or more arbitrators to decide the case in addition to having to pay your own attorney and the fact that arbitration awards that are decided by arbitrators tend to be smaller awards than cases that are submitted to a Judge or jury for a decision.  In addition, arbitration awards are typically confidential and therefore there is no public record as to what has gone wrong at this nursing home.  A Court decision typically is not going to be governed by any such confidentiality unless there is a settlement that is reached that provides for such.

The one advantage to arbitration as opposed to litigating a nursing home case in Civil Court is that arbitration can be more expeditious, i.e. you get a quicker decision.

On September 28, 2016 the Centers for Medicare and Medicaid Services (CMS) issued a final rule prohibiting nursing homes from using pre-dispute forced arbitration agreements in admission contracts that were dated after November 28, 2016. This rule applies to all skilled nursing facilities that receive money from Medicare and Medicaid which includes the vast majority of facilities in the United States.

In those instances where you or someone on your behalf has signed a nursing home arbitration contract that contains an arbitration clause and you later on want to disown it you need to look at whether or not there is an opt-out provision within the nursing home agreement.  That is, many nursing home agreements have a right to opt-out of the nursing home arbitration agreement within 30 days after you have signed it.  That opt-out provision is intended to give you a chance to “cool off” and to more intelligently review the contract that has been entered into.  In addition, it is possible to claim that the arbitration requirement is simply unconscionable, i.e. that it simply was too much to expect that a person making a decision about nursing home care could intelligently review and evaluate multiple pages of a nursing home contract that contains an arbitration clause probably hidden in the small print.  That argument in Virginia is probably a tough argument to make but it certainly is available.

Enforceability of Arbitration Requirements In Nursing Home Contract

There are a number of factors to be considered in determining whether or not an arbitration agreement within a nursing home contract is enforceable:

  • Although the U. S. Supreme Court in the case of Marmet Health Care Center, Inc. v. Brown indicated that a categorical rejection of arbitration clauses violates the Federal Arbitration Act, there still are instances where these agreements may be held unenforceable.
  • Many nursing home contracts call for arbitration to be conducted by the National Arbitration Forum.  It so happens that entity has refused to partake in such arbitrations over the last many years.  To the extent that the contract language indicates that the National Arbitration Forum was truly intended by both parties to be the arbitrator that may be a basis for voiding the contract.
  • Likewise, some contracts call for the American Health Lawyers Association to be the arbitrator.  This group has a particular pro-defense bias and that may well be a basis for excluding them as the arbitrator and/or voiding the contract.
  • To the extent that power of attorneys have been used to sign such contracts on behalf of the patient, the power of attorney itself may be defective because many power of attorneys do not take effect until disability is determined and further to the extent that they are medical power of attorneys it may be that the decision to enter a nursing home is not a medical decision.
  • Unconscionability of the agreement itself, of course, needs to be looked at closely in that these agreements may be unreasonable in that they favor one party over the other and clearly prevent one party from exercising certain rights.  Vast disparity between the parties may be a basis for voiding the contract.
  • Arbitration clauses that are one sided in allowing the nursing home to litigate but barring the patient from litigating may be defective.
  • Arbitration agreements that shorten limitation periods or require patients to travel significant distances to arbitrate may likewise be deemed to be unconscionable.
  • Arbitration clauses that put enhanced burdens on the plaintiff to prove his or her case likewise may be unconscionable.

For more information on nursing homes see the other pages on this site and for information on arbitration see the pages on Wikipedia

Contact Us For A Free Consultation

Contact Us For A Free Consultation