26 May Should You Sign a Nursing Home Arbitration Agreement?
Placing a loved one in a nursing home can be a stressful experience. There are a lot of questions to ask, decisions to make, and paperwork to sign. One of the documents a nursing home may ask you to sign is a nursing home arbitration agreement. Most people do not know what this agreement is or what it means. The lawyers at Holland, Holland Edwards & Grossman, LLC, want to educate everyone evaluating nursing home placement on what this agreement entails.
What is an arbitration agreement?
An arbitration agreement is a legal document signed by two parties that says if either side has an issue with anything they’ve agreed upon, they will settle their disagreement through arbitration rather than in court.
Arbitration agreements are very common—chances are good you’ve signed many over your lifetime without even realizing it. These types of agreements are frequently found in contracts for cell phone and television services, insurance coverage, credit cards, and financial service providers. Many companies also include arbitration agreements in their employee contracts.
A nursing home arbitration agreement allows a long-term care facility to resolve any disputes that a resident or family member has with the facility without going to court. For example, if a family member believes the facility staff is not treating their loved one properly, and they signed an arbitration agreement, they cannot take their argument to court—they must handle it outside of court through arbitration.
Colorado continues to allow arbitration agreements in nursing homes even though there are many recognized problems with that practice.
However, it’s important to note that Colorado law states that a nursing home cannot deny a person admittance to the nursing home if they do not sign the arbitration agreement. We have heard stories of nursing home staff denying entry or certain services to incoming residents unless they sign an arbitration agreement. This violates Colorado law and may well void an arbitration agreement obtained under such circumstances.
How does arbitration work?
The arbitration process can be similar to a court trial – but without a jury. Usually, during the arbitration, both sides have the opportunity to plead their case using evidence and witness testimonies. Either side may use an attorney to help with putting their case together.
Instead of a judge and jury, a specially-trained arbitrator oversees the arbitration process. They listen to both sides of the argument and then make a decision based on the facts presented. Whatever the arbitrator decides is the final verdict. Unlike a court case, generally, you cannot have an arbitrator’s decision overturned or appealed.
What are the pros and cons of arbitration?
Arbitration agreements have many pros and cons, and sometimes a pro for one side is a con for the other side. For that reason, it’s important to fully understand how nursing home arbitration agreements work before signing one.
Faster and Less Costly
They can be, but aren’t always, less costly than bringing a case to trial in front of a jury. They can also be, but aren’t always, faster. However, for an injured person in a nursing home, often arbitrations are in front of an arbitrator with ties to the nursing home company, and it may be difficult to get a fair hearing.
Confidential
Arbitrations usually take place privately, compared to a court case, which is open to the public. This can be a positive for both sides if they prefer to keep the circumstances of the dispute confidential. However, this could be a disadvantage to nursing home residents and their family members if they wanted to make their disagreement public and if they want the public to know about a care problem at a specific facility.
Arbitrators Are Not Judges or a Jury
Although many arbitrators may be retired judges, an arbitration is simply not the same as a trial. You don’t have the same rights and requirements as at an actual trial. Sometimes the arbitrator selected is not fully knowledgeable about nursing home laws and how they work.
Should I sign a nursing home arbitration agreement?
The decision to sign a nursing home arbitration agreement is really up to the nursing home resident and/or their family members. In our opinion, these agreements generally offer very little benefit to nursing home residents and mainly benefit the company.
Rarely are people signing arbitration agreements in this context told what they really mean or allowed time to make a decision about whether they want the agreement at all. The contract is usually buried within all the nursing home paperwork. While the law requires that you receive a copy of the agreement, many times, people do not realize they’ve even signed the agreement until they wish to take the nursing home to court and find out they cannot.
The good news is that in Colorado, a person can cancel an arbitration agreement within 90 days of signing it. If you have recently placed a loved one in a nursing home, we strongly suggest looking through the paperwork and contacting a nursing home abuse and neglect attorney to see if you can retract the agreement.
Even after the 90-day period has passed, the agreement may be void and unenforceable for other reasons. For example, if a person has evidence that a nursing home would not admit a resident without them signing the agreement, that may void the agreement.
Understanding Nursing Home Arbitration in Colorado
Here at Holland, Holland Edwards & Grossman, LLC, we receive calls all the time from concerned Colorado citizens asking, “should I sign an arbitration agreement?” In general, we do not suggest that our clients sign nursing home arbitration agreements. We frequently talk to people who regret having signed an arbitration agreement because it negates their ability to take their case to court.
If you have questions regarding a nursing home arbitration agreement, call Holland, Holland Edwards & Grossman, LLC today at 303-860-1331 or contact us online. We will answer all of your questions so you can make the best decision for your own care or that of a loved one.
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