Be Aware of Arbitration Language in Nursing Home and Rehab Admission Paperwork

Facilities have crafted paperwork they want and are not willing to negotiate

You are trying to choose a rehab facility or nursing home.  Wouldn’t you love to have the luxury of having an attorney review and negotiate the terms of the admission paperwork for you?  Unfortunately, that is simply not the way things work in the real world.

In the real world, the facility has crafted the agreement it wants and your only choice is to sign it or find another facility.  In many cases, the admission to the nursing home or rehab admission is totally unplanned.  And, whether by virtue of time pressure, logistical restrictions, financial restrictions or the like, you may have few options available   In a typical scenario, mom or dad falls at home and fractures a hip, leading to a hip replacement.  The family is surprised when they receive a visit from the social worker asking the family where mom or dad it to be sent next.  This visit often happens right after the surgery.  In many cases, the family is told their parent simply cannot go home and must go to a rehab.  In other cases, the family has to make the difficult decision that their parent cannot go home and must go into a nursing home because it is too dangerous at home.  The family – who has no experience picking a nursing home – is handed a list of nearby places.  Most families make this decision based only on the location of the facility, choosing the one which is nearest to their home.

At admission, the family will meet with an admissions director.  Usually, a long, complicated, and difficult to read contract is presented to the family at admission.  These documents are typically over 20 pages long, with attachments and addenda.  In most cases, the admission director will simply flip pages and tell the family to “sign here.”

Somewhere, buried in the middle of all this, in complex legal terms, the facility often buries an arbitration clause.  This clause states that if something terrible happens, or you loved one is killed, you give up your right to sue in court.  Instead, you will go before a private mediator – a person hired to resolve the dispute.  There is no jury, judge, or right to appeal, just the private mediator whose decision is totally binding.  The arbitrator is not accountable to anyone.

The admissions people are hoping you miss the importance of this in the document, because no matter how much the document says that arbitration saves you time and money, this is not true.  The reason companies want arbitration is because studies show that awards at arbitration are smaller than in court – by about 35%!

To be clear, you get absolutely nothing out of signing pre-dispute arbitration documents.  You can always agree to it later after something terrible happens.

In New Jersey, pre-dispute forced arbitration in nursing home and rehab admission paperwork used to be totally and completely illegal.  This makes sense because a person putting a loved one in a nursing home is making a difficult emotional decision.  The family has very little bargaining ability.  In many cases, mom or dad will already be in the building, and many people I talk to are afraid to “rock the boat,” and don’t want to be confrontational.  As a result, most people will probably sign just about anything put in front of them to get a person the care they need.

Unfortunately, these clauses are now legal.  Be careful what you sign.  If you find arbitration language in the admission paperwork, you are certainly entitled to ask about it and find out exactly what it means before you sign anything.  If it is non-negotiable, this may raise concerns for you about the care the facility is prepared to deliver.  No one who has sat in my office ever imagined the poor care and horrific outcomes their moms and dads would suffer when they were put in the nursing home.  You always hope for the best but prepare for the worst.  You have an absolute right to understand exactly what you are giving away before you sign an agreement.

For more information, call our nursing home abuse lawyers in New Jersey at 609-786-2540 or contact us online. At Davis & Brusca, it’s personal.