Estate PlanninG

Be Careful When Signing Nursing Home Arbitration Agreements

You hear about nursing homes in connection with abuse and neglect all the time. So if you are putting a loved one in a home, be careful not to get trapped into signing an arbitration agreement. Nursing homes do this to avoid getting sued for abuse and neglect. The agreements are usually presented in a “take it or leave it” setting. Don’t be concerned that the home won’t take a new resident if you don’t sign because under California law, the only document a nursing home can require you to sign as a condition of admission is the Standard Admission Agreement (CDPH 327) developed by the Department of Public Health.

Nursing homes cannot require you to sign an arbitration agreement and cannot present an arbitration agreement as part of the Standard Admission Agreement. California health and Safety Code §1599.81, Title 22 California Code of Regulations §72516.[1]

You do not need to tell the nursing home you are not going to sign the arbitration agreement. At admission, tell the nursing home you are going to take the form home to review it. Then simply don’t sign or return it to the facility.

If you have already signed the arbitration agreement, you have 30 days to rescind it by giving written notice to the facility. California Code of Civil Procedure §1295.

So what is an arbitration agreement and how does it prevent you from being an advocate for a loved one entering a nursing home?

By signing a nursing home admission agreement that includes an arbitration provision, the parties are agreeing to give up their constitutional right to have a dispute, including neglect and abuse cases, decided in a court of law in front of a jury, and instead are agreeing to the use of binding arbitration. This means the decision of the arbitrator is final and there is no appeal. Rather than having the issue decided by a jury, the matter will be decided in private, by a private arbiter and the decision will not be part of public record and are not subject to judicial review.

Is going through Arbitration faster than going through the court system? Under current California law, a plaintiff who is 70+ or sick can ask for an expedited hearing. When the court grants a preference, the trail must be set within 120 days. In arbitration proceedings, the defendants can drag out the selection of the arbitrator and seek indefinite postponements of the hearing. The victims of such delays have no recourse to a higher court and no right to an independent review of procedural abuses. [2]

If you are being coerced into signing a nursing home arbitration agreement, contact Ivette M. Santaella of the law firm of Santaella Legal Group, APC, serving San Ramon, Danville, Dublin and the bay area.

[1] Advocate_2015Q4.pdf pg 6.