Revisiting Arbitration Agreements in Nursing Homes

For more than a year, mandatory arbitration agreements have been illegal in California nursing homes. Instead, patients at facilities in San Diego can only be asked to sign voluntary binding arbitration agreements. Over the last year, the Centers for Medicare and Medicaid Services (CMS) has been working on a federal rule that would prohibit forced arbitration agreements in nursing homes across the country, permitting facilities instead to have only voluntary binding arbitration agreements (like those in California). Yet according to a recent article in The New York Times, even voluntary binding arbitration agreements can put a nursing home resident in a vulnerable position in relation to a facility. Should we be talking about banning all arbitration agreements if we want to ensure patients get justice when nursing home abuse happens?

No Legal Recourse for Harmed Patients in Arbitration?

As the article in The New York Times explains, federal rules concerning forced arbitration agreements in nursing homes will soon be finalized. However, are those protections sufficient to ensure that nursing homes are held accountable when nursing home abuse or neglect occurs? As a brief reminder, arbitration agreements—both those that are “forced” or required for a patient to enter a nursing home, as well as those that a patient agrees to voluntarily upon entering a facility—require patients and their families to settle legal issues “through private arbitration rather than through lawsuits.”

The article argues that “corporations of all sorts love forced arbitration because it overwhelmingly tilts in their favor and shield them from liability . . . but in the process, it denies justice to consumers, investors, patients, and others who find they have no legal recourse when wronged.” In other words, arbitration tends to favor the corporation (or the nursing home) over the injured patient. Given that it will usually be in a patient’s interest to file a lawsuit instead of entering into private arbitration, why do California and federal laws still permit voluntary binding arbitration agreements?

Voluntary Arbitration Agreements May Still Favor Nursing Homes

The problem with allowing voluntary binding arbitration agreements—those that a patient enters into voluntarily but still requires him or her to go through private arbitration rather than filing a lawsuit in the event of a nursing home abuse injury—is that they may not be truly voluntary. While the new rule will require nursing homes to explain in detail what the arbitration agreement entails and will emphasize that signing the agreement is not a condition of admission, many elder advocates worry that such explanation is not sufficient.

As an article in Modern Healthcare contends, many older adults in California still feel like they need to sign a voluntary arbitration agreement in order to be admitted into a nursing facility, even when that facility explains in plain language that the agreement is voluntary. There is no amount of information a nursing home can provide, the article in The New York Times maintains, that could make an arbitration agreement fair to the patient: “Prospective patients do not have the necessary information to make a decision about signing clauses . . . .  A nursing home admission is stressful and confusing enough without your being asked to sign away your right to sue.”

If you have questions about your legal rights in a nursing home or filing a nursing home abuse lawsuit, an experienced nursing home abuse attorney in San Diego can help. Contact the Walton Law Firm today.

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Nursing Home Abuse at the Hands of Other Residents