12-2020: Just Say No! to Arbitration Clauses on Nursing Home Contracts

Welcome to December IAN readers. What a strange, difficult year it has been. I hope everyone is staying safe and healthy during these troubling times.  A lot of families have suffered this year by the sweeping effects of the Coronavirus pandemic as it swept arbitrarily throughout our world. It has been well reported that nursing homes and their residents have been particularly hard hit by this deadly virus.  Despite the worrying trend, placing a loved one into a nursing home is still a reality for many families and my focus this month is an attempt to educate IAN readers who might be faced with this step.  During the admission to a nursing home, serious discussions will be necessary and many papers will be placed in front of you and/or your loved ones and you may be unsure what they mean or what to do with them.  The admission papers to a nursing home, include admission contracts, health authorizations, Medicare documentation, power of attorney forms and do not resuscitate directives, to name but a few. This month I will focus on the increasingly popular phenomenon of presenting residents and their families with arbitration agreements as part of the Nursing Home admission process.

No one enters a nursing home imagining that he or she will be mistreated or neglected there. Everyone wants to start off on the right foot with nursing home staff and personnel. Unfortunately, even in the best nursing homes, things can and do go wrong.  If they do, residents absolutely need to protect their rights to seek a remedy in court and the purpose of an arbitration agreement or clause, takes away those rights from residents and their families. The purpose of this article is to advise you at the outset, please know you DO NOT HAVE TO SIGN an arbitration agreement or arbitration clause to be admitted into a Nursing Home.  

What is an Arbitration Agreement/Clause?
Arbitration agreements take away your rights to pursue a nursing home for negligence or wrong doing, in a court of law and set out alternative ways to deal with complaints of wrongdoing or negligence, which will deprive you or your right to a trial by jury.  Generally, arbitration agreements heavily favor the nursing home as against the interests of the resident. They will generally entail a provision that any dispute will be heard by an Arbitrator, not a Judge and often times, the nursing home will be the entity to choose who the Arbitrator is. Generally, they will not allow a matter to proceed before a jury and your inherent basic right in that regarded will be lost.  Often times an arbitration agreement will state that final decisions are binding with no right of appeal and the decisions are almost always confidential so the facility’s wrongdoing or negligence will remain a secret.  Sometimes Arbitration agreements they take the form of an actual separate agreement, which is easily recognizable but other times, the language of an arbitration Agreement can be buried deep within the rest of the nursing home resident’s admission documentation. Thus, the admission process should not be rushed and you should be given sufficient time and space to look over and understand everything you are being asked to sign.  

What are your rights?
If presented with an arbitration agreement or if you notice an arbitration clause within the nursing home admission paperwork your attention should be awakened and you should not proceed any further without fully understanding what you are being asked to sign. Fortunately, Federal guidelines do give residents and their families a number of rights that will protect you when confronted with such an agreement. Some of these are set out below:

•You HAVE the RIGHT to REFUSE to sign the agreement. Just say No!
•If the arbitration clause/paragraph is buried withing your admission contract, CROSS IT OUT. Put your initials by the crossed-out section and date it.
•If the arbitration agreement is in a separate form on its own, just refuse to sign the actual form.
•A Nursing home CANNOT DENY your admission or discharge to a nursing home because you refuse to sign their arbitration agreement.
•Nursing homes are required to explain to you the arbitration agreement and its purpose. Often times they will ask you to sign a piece of paper to confirm that they did in fact explain the arbitration agreement to you. Be careful when you are signing this, so as to ensue you are not actually signing the arbitration agreement, in lieu of just acknowledging that the nursing home explained it all to you.  
•If you do sign an arbitration agreement, you must be allowed thirty days to rescind or undo the agreement.

My colleagues and I here at Dwyer & Coogan are always happy to discuss any questions or concerns you might have if you are facing the difficult decision to enter a nursing home or place a loved one in a nursing home. As always, our consultations are free and we would be happy to discuss any of your concerns in this area. I wish you all a Happy Christmas and may 2021 be kind to you and your loved ones.   

*Caroleann Gallagher is an Irish born Attorney now licensed in Illinois and practicing all types of personal injury law – including nursing home litigation, medical malpractice law, wrongful death claims, transportation injuries, premises liability claims, defective product claims, construction site injuries and Workers Compensation. She can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it. or at 312-543-4642.