Signing the paperwork to put a beloved parent into a nursing home is often heart-wrenching and stressful. It can be hard to admit that you don’t have the resources to properly care for your loved one. But before you sign any papers, read them carefully and look for hidden clauses that might take your rights away should something happen.
What Is An Arbitration Clause?
The arbitration clause is an oft-missed part of the paperwork you fill out at a long term facility that states that if something happens at the nursing home that results in the injury or death of your loved one, you agree to use a private arbitrator to settle for damages rather than take the nursing home to court.
Problems of Arbitration
While some may be quick to point out the benefits of an arbitration clause, such as the lower cost for care and the less chance that residents will be faced with an unmitigated lawsuit, there are many problems associated with using an arbitrator rather than taking a case to court. Some of these problems involve:
- Costs to family: The arbitrator’s fee can be hundreds of dollars an hour, which must be split between the family and the nursing home. While the nursing facility has money put aside for such instances, the average family doesn’t have that luxury.
- Confidential Nature: While it can benefit everyone involved to be discreet about court proceedings, arbitration is often conducted in private without public record of any sort. This means that if the nursing home is responsible for negligence or another resident commits an act that could make him dangerous to future roommates, no one will ever know it.
- Lower Monetary Damages: Because an arbitrator is often chosen by both parties, he or she may agree to a lower settlement in order to receive future cases from the nursing home.
The Need For Lawsuits
Why does it matter so much that you do not sign an arbitration clause? What are the chances that you will even need to worry about lawsuits? According to statistics, the chances are quite high that at some point in your experience with a nursing home you will have to deal with your loved one being hurt or injured. In fact, between the years, 1999-2001, almost a third of the nursing homes in the United states were cited for violating regulations that might have led to serious injury or death of a resident.
How To Avoid The Dreaded Arbitration Clause
In an increasing number of cases, judges are throwing out the arbitration clause as part of a trend toward encouraging more honest business practices, since many people sign them without knowing what they are agreeing to. But there are many nursing homes who will still try to include an arbitration clause as part of their admission requirements.
The best way to avoid signing such a clause is to ask questions if you encounter something in the paperwork that you don’t understand. You cannot be required by law to sign an arbitration clause for admittance to a nursing home.
If You Have Already Signed A Contract
If you have already signed an arbitration clause and it has been less than thirty days, you may revoke your signature. If it has been longer than thirty days you may still void arbitration should anything happen by arguing that without power of attorney over the resident in question you were not entitled to sign the agreement.
Some nursing homes will try to deny your loved one acceptance into the nursing home without a signed arbitration clause. This is illegal and generally frowned upon, but some facilities will still try it. If your choices are limited or you see a need to have your loved one in a particular facility, you may try to get the administrator to accept him with the understanding that you will sign papers upon moving in. Once the facility has accepted him, it cannot evict him for failure to sign the arbitration clause.