One of the most pernicious clauses which nursing homes put into their admission agreements are arbitration provisions. The arbitration agreement takes away the rights of the nursing home resident or her family to have a judge or jury decide any legal claim against the nursing home. This would include claims for elder abuse, neglect, and negligence which cause personal injury or even death. Instead, a private arbitrator must hear the claim. Medicare has recognized the unfairness of these agreements and has instituted new regulations to prohibit nursing homes from compelling residents to sign arbitration agreements.
The new regulation, 42 CFR§ 483.70(n), provides: “We are requiring that facilities must not enter into an agreement for binding arbitration with a resident or their representative until after a dispute arises between the parties. Thus, we are prohibiting the use of pre-dispute binding arbitration agreements.”
In the past, nursing homes would typically have arbitration agreements signed by the resident or a family member before the person was admitted to the facility. In California, it has been the law that residents could not be required to sign such agreements as a prerequisite to admission. California Health & Safety Code§ 1599.81, Title 22 California Code of Regulations § 73518, however, many unsuspecting people signed such agreements anyway because of the way they were presented to them by the nursing home administrator. Often, these agreements were sold as an economical and quick way to resolve disputes with the nursing home should problems arising. In reality, the agreements were taking away people’s constitutional right to a jury trial, and people did not realize the drawbacks of the arbitration process until it was too late. Finally, this practice will be stopped.