Nursing Home Agreements/Contracts

An agreement/ contract with a nursing home on behalf of a loved one is like any other written agreement/contract. It will be in writing, enforceable and defines – among other things – the legal responsibilities and rights of each party.  Before signing any agreement/contract one should read it thoroughly and if in doubt it would be advisable to have it reviewed by an attorney.

Many contracts contain a ‘forced arbitration clause’. (Other terms used are binding arbitration, mandatory arbitration, as opposed to “voluntary arbitration”)  The use of forced arbitration clauses in contracts has been a hot topic for a long time.

The National Consumer Law Center (NCLC) recently posted an article titled: Forced Arbitration Clauses in Nursing Home Contracts May Put Older Adults at Risk

According to the NCLC article (referencing a New York Times article): “ In essence, a person signs away their constitutional right to their day in court and instead agrees to an arbitration hearing for any grievance”.

Under forced arbitration the company can choose the arbitrator and sets other terms of the arbitration hearing,….”

The Centers for Medicare & Medicaid Services (CMS) had announced a proposed regulation restricting the use of binding arbitration agreements by nursing homes and importantly would ban admission to a nursing home conditioned on signing a binding arbitration agreement. (See Federal Register below)

By accessing the link below of the National Consumer Law Center (NCLC), you can read at length the webinar documents entitled: Nursing Home Admissions Agreements: A Discussion of the Unfair Terms in the Agreements Presented to Elders on Entering a Nursing Home

Eric Carlson, Directing Attorney, National Senior Citizens Law Center and David H. Seligman, Irving Kaufman Fellow, National Consumer Law Center Jessica Hiemenz National Consumer Law Center (April 2, 2014) https://www.nclc.org/images/pdf/conferences_and_webinars/webinar_trainings/presentations/2013-2014/nursing_home_admissions_agreements_webinar.pdf

 Additional Reading:

 Modern Healthcare. An end to mandatory arbitration agreements in nursing homes? By Lisa Schencker | (July 17, 2015_ is an article that thoughtfully presents the issue of voluntary/mandatory/binding/forces arbitration agreement clauses in nursing home residential agreements.

  Deal BookPivotal Nursing Home Suit Raises a Simple Question: Who Signed the Contract?      By Michael Corkery and Jessica Silver-Greenberg (Feb. 21, 2016)

Bifocal. A Journal of the ABA Commission on Law and Aging. Volume 36: Issue 6. Should CMS Prohibit Arbitration in Nursing Home Admission Contracts? By Erica F. Wood                  About the Author: Erica Wood is Assistant Director at the ABA Commission on Law and Aging in Washington, DC.

The Federal Register  – Medicare and Medicaid Programs; Reform of Requirements for Long-Term Care Facilities A Proposed Rule by the Centers for Medicare & Medicaid Services on 07/16/2015

  FINAL WORD: As with any other written agreement/contract, it is advisable to have the contract reviewed by an experienced attorney prior to signing the document so that you can retain your legal rights.

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About Attorney Barbara Ann Dalvano

Attorney in Denver, Colorado with extensive practice experience in the areas of Estate Planning, Wills and Trusts, Business Succession Planning, Probate, Contract Law.

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