What to do:
If you admitted a family member to a nursing home you agreed to mandatory arbitration of all disputes. You cannot go to court. But, you have 30 days to rescind your agreement. Do it. Consumer advocates recommend not agreeing to arbitration before a dispute arises. After a dispute occurs you may agree to arbitration after consulting with your attorney.
The reasons for and against arbitration are complex, but here is a simple rule for the patient advocate. Do not agree to “pre-dispute” arbitration. If you signed such an agreement – often a single paragraph buried in pages of an admission agreement, you have 30 days to inform the nursing home you do not agree to arbitration. Do it in writing.
The admission packet: If you are admitting a family member to a nursing home you will be presented with a pile of papers to sign. This process will happen when your loved one is assigned a bed upon arrival from the hospital. This is a very hectic time. When presented with the pile of papers say “I would like the chance to read them. Can I take them to the room and read them there?” (Note – Covid protocols prohibited family members in the patient area. If such rules are still in effect then ask for the chance to read the papers in the lobby.) Cross out the paragraph of arbitration and initialing the change. Remember you have the right to not agree. If the admission person says cross outs or changes are not allowed, then when you sign include the statement “I do not agree to arbitration.”
What if it is more than 30 days since signing? You can ask and see if you can review the admission packet and try to make changes then. It is likely your only option to avoid arbitration is to move to another nursing home. See comment in Conclusion below.
Why?
There are many, many articles about arbitration. Nolo.com has a good explanation of the process. Public Citizen, Citizen .org, has many articles explaining the negatives of consumer arbitration.
Not neutral: In short, arbitration favors the company over the consumer. The arbitrator acts as the judge and jury. Arbitrators are always people familiar with the industry and have a reputation for favoring the business over the consumer. In court the consumer has a much better chance.
Expensive: Unlike television ads where lawyers say you pay nothing unless you win, in arbitration, win or lose, each side pays its costs and the joint cost of the arbitrator. Those can easily be in the thousands of dollars.
Incomplete Facts: When something bad happens to your family member in the nursing home, you must prove that the nursing home was and is at fault. That takes witnesses and documents such as nurse or aide logs. The nursing home has possession of these. In court lawyers have found records were changed after the reported injury. Witnesses may not testify for fear of being fired and being given bad references to new employers.
Conclusion
Do not agree to pre-dispute arbitration. You can always agree to arbitration after a dispute arises and after you consulted with your attorney.
What if your family member was admitted months ago? Your only solution may be to move to another nursing home and not agree in the new packet of papers to sign. And remember, if your patient goes to the hospital you can always inform the discharge department you want placement in another nursing home, in which finding a better nursing home is another story itself. We have other blog posts on that subject!
All the best,
Jim