Say “No” to Nursing Home Arbitration
We are always in a rush. Microwave this, drive there, go here or there next, and ask Amazon to ship us things, so we do not have to go here or there in the first place…it comes to us. The world has drastically changed in the last couple of years. Consumers are the big benefactor of increased technology, in the sense that they receive products and services more quickly and conveniently. See https://www.theatlantic.com/magazine as of January 4, 2020.
I. Nursing Home Arbitration – an overview
For the purchase of consumer products, such as books or toilet tissue, the speed and convenience can be a very good thing. Increasing the speed in the nursing home admission process, however, can give enormous benefits to the nursing home by you or a loved one inadvertently giving up their right to a jury trial should they desire to pursue civil litigation in the future.
Generally, when you or a loved one is admitted to a nursing home, the nursing home staff will have you sign a stack of documents, whether physically or electronically. Many of these forms are benign, but lurking within the stack is a very important document. A document that states that you agree to give up your 7th Amendment right to a trial by jury should anything go wrong at the nursing home. Can you believe that during a nursing home admission the nursing home wants you or a loved one to give up your rights as a US Citizen under the Constitution? How un-American is that?
As you can imagine, this document is not sandwiched between other paperwork for your benefit. Instead, it is inconspicuously laying in middle of the stack of documents that you will be asked to sign. We wonder if the nursing home does this to try to gain some kind of rhythm with your pen strokes, so by the time you get to the arbitration agreement, you are numb and are in the habit of signing insignificant documents. Clearly, the nursing home wants you to sign this document, so it may force any future civil litigation concerning your or your loved one’s residency to arbitration, out of a Court of Law, and away from a jury of individuals that live in your community. They prefer that the community not know about the claims being made against the facility, and they feel arbitration gives them more control over keeping claims secret and limiting the amount of awards.
II. Feeling down about nursing home arbitration, just remember, “I’ve got the POWER!” – by SNAP! – you can reject nursing home arbitration
If you are old enough to remember the “lyrical Jessie James,” from 1990, then you may remember the song, “The Power,” and its hook “I’ve Got the Power.” See video as of January 4, 2020.
Remember, you have the power. You can decline arbitration in the nursing home context.
At the end of the day, you have the power to say “NO.” Say “NO” to ARBITRATION. Tell them when you are signing the documents for admission that you do not agree to arbitration and you desire to “X” all of those provisions. Do not sign them and mark them out with an “X” demonstrating that you do not agree. You have the power.
Keep in mind:
A FACILITY CANNOT CONDITION ADMISSION ON YOU SIGNING THE ARBITRATION AGREEMENT– page 9, as of January 4, 2020 – therefore, if you have found the nursing home that you want and they ask you to sign an arbitration agreement, say “NO” to ARBITRATION, and the facility should allow your or your loved admission without arbitration. If they do not, please give us a call immediately. You may call us at (205) 443-7264, send us a text at (205) 563-3525 or contact us via our webform.
Keep in mind, if you decide at some point after the nursing home residency is completed that you want to arbitrate the claims, instead of going to Court, please do not be worried. The nursing home will likely and gladly go to arbitration, because that is where they want to be in the first place.
So, the best way to look at this decision of saying “NO” to ARBITRATIONis that it gives you the best of both worlds. You can make a choice at a later date to go to Court or arbitration. If, however, you sign the arbitration agreement stating you agree with arbitration at the time of admission to the nursing home, there is about a 100% chance that you will only have one option – arbitration (unless there is a caveat, exclusion, or some other reason that makes the arbitration agreement invalid or void, such as lack of competency).
So, when you go to the begin the admission process for the nursing home, be sure to tell the person who is asking you to sign all the paperwork: “I do not agree to arbitration” and that you say “NO” to ARBITRATION. If they give you any trouble, ask them to give me a call, and I will gladly explain to them that you say “NO” to ARBITRATION.
After you have successfully told them “NO” to ARBITRATION, you can celebrate like it is the Fourth of July. You have retained your rights as a U.S. Citizen under the U.S. Constitution. That has to be a great feeling. Isn’t it great to be an American?
 Arbitration may be a forum mutually agreed upon by parties in other areas of the law, but in the nursing home context, there is neither a meeting of the minds between the facility and its resident, as it concerns arbitration, nor is there any true consideration passing to the resident in return for taking their 7th Amendment right to trial by jury. Alabama statutory law recognizes that the nursing home admission process is no place to make a decision about whether or not to arbitrate a claim. Instead, it states that the proper time for making such a decision is “after” the residency is over. See e.g. Ala. Code § 6-5-485. Under § 6-5-485 of the Alabama Code, it states:
After a physician, dentist, medical institution, or other health care provider has rendered services, or failed to render services, to a patient out of which a claim has arisen, the parties thereto may agree to settle such dispute by arbitration. Such agreement must be in writing and signed by both parties.
ALA. CODE, 1975 § 6-5-485(a) (emphasis added).
Clearly, the Alabama legislature understood that sitting down and deciphering an arbitration agreement should come after nursing home services have been rendered, not before, when the primary concern is the care and treatment of the individual resident, who is about to enter the nursing home.