Moving a loved one to a nursing home is a stressful time in a family’s life. Researching and finding the proper care for an elderly family member takes a lot of time and a lot of paperwork, including filling out contracts. Often, nursing home residents and their families unknowingly sign contracts agreeing to mandatory arbitration in the event of any legal action. What this means is that you’re signing away the ability to take the nursing home or its staff to court if their actions result in harm to your loved one.
Victims of nursing home neglect and abuse typically fare better in court, when given the chance to tell their story in front of a jury. Nursing homes and the companies that own them are aware of this, and put arbitration clauses in their contracts to prevent public trials from happening. If you are currently in the process of searching for a nursing or residential home for yourself or a loved one, it’s crucial to ask if your contract contains a mandatory arbitration agreement. If it does, consider not signing it or speaking with an experienced attorney first.
What is arbitration?
Arbitration is an out-of-court, legally binding proceeding. It happens with a neutral, third-party arbitrator who makes a decision regarding a dispute. Although this person is not a judge, they do make a final decision which both parties are compelled to obey, and neither party can appeal. Most nursing homes and long-term care facilities prefer arbitration, as it protects them from lawsuits and limits their liability, which makes good business sense.
However, an arbitration clause also allows unethical and irresponsible management to act negligently without accountability. And, compared to a lawsuit, arbitration doesn’t provide a right to discovery, which is where both sides agree to disclose information related to the case. Finally, and perhaps most importantly, arbitration is held in private. Even in the worst cases of negligence and abuse, arbitration is confidential and even if a nursing home is found guilty, there will be no public record of the case.
According to TIME, nursing home claims that undergo arbitration settle for seven percent lower total costs to the business and three months sooner than claims resolved without arbitration. Critics of arbitration say it cripples class action suits and takes power away from the people.
You don’t have to sign it
It is illegal for a nursing home or long-term care facility to ask you to agree to mandatory arbitration as a requirement of acceptance to their facility. If you or your attorney sees this clause in your or your loved one’s contract, request it be removed. Recent legislation allows this.
This new rule, which went into effect on September 16, 2019, allows nursing homes to enter into pre-dispute arbitration, but does ban them from using them as a condition for admittance. The legislation also provides residents a 30-day grace period to rescind their agreement to arbitration, and prohibits language preventing residents from contacting Illinois or federal authorities.
The group Justice in Aging said in a statement, “Allowing facilities to ask residents to sign pre-dispute arbitration agreements is unfair to residents and their families and will harm their rights, safety, and quality of care.”
Even if you or your loved one have already signed a nursing home contract, you may have options. The skilled Chicago injury attorneys at Gainsberg Law can talk to you about your circumstances and provide informed guidance. To schedule a free consultation, please call 312-600-9585 or complete our contact form.