Nursing Home Arbitration Agreements
As families bring their loved ones into a new nursing home, the last thing they are thinking about is the stack of papers that the facility requires them to sign, which can deny them a leeway to hold the nursing home accountable if abuse happens.
They have far more pressing considerations: health care, security, privacy, nutrition, etc. Additionally, a large nursing facility has much more bargaining power against a desperate family that might not keenly scrutinize the agreement.
However, our personal injury attorneys at Rosenfeld Injury Lawyers, LLC caution families to watch out for arbitration agreement contracts. The clauses within documents force you into arbitration if a dispute arises, meaning you will be unable to bring your claim to a jury or even a judge.
Instead, you must plead your case to an arbitrator likely to favor the nursing facility. There are other substantive and procedural hurdles that nursing facility arbitration clauses present.
The essential thing is that families understand the agreement issues and know how to avoid them. Call our Chicago nursing home abuse lawyers toll-free at (888) 424-5757 for a free consultation to explore your legal rights.
The Meaning of Arbitration Contract Agreements in Nursing Home Admission Paperwork
Nursing home agreements merely mean that parties have privately decided to settle disputes outside the Illinois court system. Generally, it is an arbitration clause, provision, or section within a broader nursing home contract.
Therefore, if a party takes issue with the other, they cannot bring a lawsuit in court. Instead, they have to negotiate privately or go through the official arbitration system.
Disputes involving mandatory arbitration agreements typically include controversies over breach of performance, mitigation of damages, or other contractual disagreements.
Arbitration Agreements in Illinois Nursing Homes
Illinois nursing facilities frequently put binding arbitrations in their residency contracts. Nursing home residents and their families often do not realize they agree to that specific provision because it is embedded in many other clauses.
However, they should note that it has enormous ramifications should they seek relief if they are injured there. Specifically, Illinois nursing facilities use arbitration contracts to eliminate your right to seek redress through the court system and before a jury because arbitration decisions are final.
The Trump administration revised the rule. Now nursing facilities can incorporate arbitration provisions in their contracts but forbid them from requiring residents to sign agreements as a condition of admission.
The Seventh Amendment to the United States Constitution is part of the Bill of Rights, which allows the right to a jury trial in certain civil cases.
Pre-Dispute Arbitration Agreement in Nursing Facilities
A pre-dispute arbitration agreement is a contract between a nursing facility and a nursing home resident or resident representative. The parties agree to submit any disputes between them to arbitration.
This document is sometimes called a "binding arbitration" or "mandatory arbitration" agreement.
The well-being of a nursing facility resident should be a priority for family members and nursing facility staff. The arbitration provisions must be explained to the resident to decide whether or not to agree.
Arbitration Agreement in the Nursing Home Industry
Pre-dispute arbitration agreements are commonly used in the nursing home industry.
By signing a pre-dispute arbitration agreement, the nursing facility and the nursing home resident agree that arbitration will resolve the dispute between them.
Federal law requires that nursing facilities inform nursing home residents of their right to refuse to sign the arbitration agreement. Such agreements must be entered into voluntarily, without coercion or pressure from the facilities.
Enforceability of an Illinois Nursing Facility Arbitration Agreement in Negligence and Wrongful Death Lawsuits
The Illinois Nursing Home Care Act ("NHCA") nullifies any binding signed agreement that removes a resident's right to a jury trial for claims against the facility. In essence, Illinois state law allows nursing facility abuse and neglect victims to go forward through the legal process.
Yet, the problem arises with federal law. In Kindred Nursing Centers, L.P. v. Clark, the Supreme Court ruled that federal law (the Federal Arbitration Act) preempted state laws that allow valid contracts to be dismissed simply because it waives or removes a right to file a lawsuit.
The apparent contradiction between Illinois and federal laws will render the former meaningless. Plaintiffs should expect that their contracts to arbitrate disagreements with nursing facilities will be enforced due to federal preemption precedent.
Medicare and Medicaid Services
The Centers for Medicare and Medicaid Services (CMS) prohibits nursing facilities that accept Medicare from using pre-dispute arbitration as a condition of admission. It compromises informed decision-making on the resident’s part.
However, some nursing centers continue to include these clauses in their contracts. CMS issued a final rule that updates the policies and requirements for long-term care (LTC) facilities participating in the Medicare and Medicaid programs.
The final rule implements several provisions of the Patient Protection and Affordable Care Act, the Health Care and Education Reconciliation Act of 2010, and the Improving Medicare Post-Acute Care Transformation Act of 2014.
CMS Rule Prohibiting a Mandatory Arbitration Clause
Medicare or Medicaid will not reimburse nursing facilities with mandatory contract clauses. The CMS rule is based on a finding that mandatory arbitration clauses can prevent residents from seeking redress for injuries or mistreatment in court, thus denying them their constitutional right to a jury trial.
In addition, the CMS rule notes that mediation is often conducted in secret, which can prevent critical information about unsafe nursing facility conditions from becoming public.
The residents' level of care is essential to CMS, as well as to state survey agencies. Under the arbitration rule, residents can revoke their arbitration contract by giving written notice to the nursing facility within 30 days of signing the contract or being admitted to the nursing facility, whichever is later.
The Challenges of Admitting a Resident in a Nursing Facility
Admission to a nursing home is often a difficult and emotional time for the individual and the family because the resident is entering an unknown environment.
Additionally, the admission process can be further complicated as many nursing facilities require residents and their families to sign arbitration contracts.
Illinois Nursing Home Arbitration Agreement FAQs
Our personal injury attorneys understand that many families have unanswered questions in dealing directly with nursing facilities, insurance companies, and others concerning the law, binding agreements, and potential negligence. An attorney from our law offices has answered some of those questions below.
For additional information, contact our law office today at (888) 424-5757 (toll-free phone number) or use the contact form.
Before I Admit My Family Member to an Illinois Nursing Facility, What Should I Do?
Before signing an admission agreement or dispute contract, which might be a separate form, with an Illinois nursing home, speak with an experienced law firm. They can ensure you don't sign any of your rights away and put you and your family in the most secure position possible.
Can I Still Obtain Compensation Even If I Signed a Binding Arbitration Agreement with an Illinois Nursing Facility?
Plaintiffs can still recover compensation in Illinois for nursing facility abuse even if they signed an agreement, but the manner and method will differ. The setting will probably be in front of an arbitrator who will most likely be “pro” nursing facility.
The compensation will most likely be more limited than what is available in court. Therefore, it is crucial not to sign an arbitration agreement before entering an Illinois nursing facility.
How Much Would It Cost Upfront to Bring a Case Against an Illinois Nursing Home?
Nothing because capable law firms like ours work on contingency so that we can get to work for you, and you do not have to worry about expenses until we secure an award or settlement for you.
Our team has the resources, experience, and commitment necessary to ensure your case has the best chance of winning! You deserve no less.
Can I Still File a Claim Even If My Loved One Died in an Illinois Nursing Home?
Illinois law allows families to take a wrongful death action against nursing homes if their conduct caused or substantially contributed to the death of their nursing home resident.
The liability extends to any responsible party working there and third parties operating within the facility. The claims can reimburse aggrieved families for the pain, sorrow, and costs that the tragedy caused.
Why Should I Not Sign an Arbitration Agreement Contract?
When you or a loved one enters a nursing facility, the last thing you want to think about is what would happen if you were mistreated or neglected while in the facility.
Unfortunately, nursing home abuse and neglect are very common, and many facilities try to protect themselves from liability by having residents sign an arbitration agreement contract.
A pre-dispute arbitration in the admission contract waives your right to court proceedings/trial. By state and federal regulations, once you sign an arbitration agreement contract, any disagreement or dispute is resolved through mediation.
A Private Arbitrators Financial Incentive
Any process to hold the nursing home accountable is now handled by a private arbitrator, barring extraordinary circumstances, which is often unfair to residents, as the nursing facility typically chooses the arbitrator.
The arbitrator has a financial incentive to side with the facility or staff member during the dispute hearing, hoping for future business when parties want to hold the nursing home accountable.
The rules are different when an admission contract is involved that do not benefit residents. In some cases, wrongdoing remains secret, and the other side or fellow resident can introduce hearsay evidence (not allowed in court) during the mediated dispute that protects the nursing center, staff member, or the facility's record.
Read the Fine Print on All Pre-Dispute Arbitration Agreements
If you are considering entering a nursing facility, read all documents carefully before you sign an arbitration agreement contract. In addition, mediation proceedings are often kept secret, so you would not be able to tell your story. Consider consulting with an attorney before signing anything.
Did you already sign an arbitration agreement contract? You may still be able to rescind it if you act quickly within 30 days. Nursing home abuse and neglect are serious problems; you should not give up your rights to hold the facility accountable if a staff member mistreats you.
Speak With Our Nursing Home Lawyers Regarding Arbitration Agreements
Rosenfeld Injury Lawyers, LLC work with families considering nursing facility options. We help them evaluate the binding pre-dispute arbitration contract agreements they must sign before moving their loved ones into such facilities.
Our dedicated team helps them analyze these contracts so they can avoid locking themselves into bad situations. Then, if trouble arises, our lawyers bring claims on their behalf to seek justice and recover compensation for nursing home abuse and neglect.
Contact our law firm today at (888) 424-5757 to talk to a lawyer about your legal recourse. Take action to protect yourself and your loved ones.
All confidential or sensitive information you share with our legal team remains private through an attorney-client relationship.