Devil in The Details
June 1, 2022
There is a famous sign outside of Montgomery, Alabama (on I-65 North near Prattville) that says
“Go to Church or the Devil will get you”. www.montgomeryadvertiser.com/story/news/local/alabama/2018/01/31/family-resurrect-go-church-sign-beside-85/1082330001/
Well, for the purposes of nursing home admissions, I propose we change the sign to read,
“Don’t sign the arbitration agreement or the Devil will get you.” I’ll give you creative license to
insert who you think we mean by the “Devil,” after you read the remainder of this blog post.
I. Are you too busy for details?
Well, many in the nursing home industry certainly hope so. They hope that you love your loved
one (mom, dad, sister, brother, child, or friend), so much, that you are totally focused on them
and you (will falsely) believe that the nursing home will not abuse this love and devotion by
placing in front of you a complicated legal document when your loved one is vulnerable and
your care, support and attention is focused on them, 100%.
But, you are wrong.
Many nursing homes do want to take advantage of the situation of uncertainty, grief, and anxiety
(that moment when you are admitting a loved one to a nursing home), often after a hospital stay,
and place complicated legal documents in front of you for you to hurriedly sign, often under the
time pressure of stopping by the nursing home, as only one of the many things you need to do
before your loved one is transferred to the nursing home facility.
Nevertheless remember - YOU HAVE NO OBLIGATION TO SIGN THE ARBITRATION OR
DISPUTE RESOLUTION AGREEMENT. It cannot be a condition of admission. Your loved one
will still be admitted to the nursing home facility, even if you DO NOT SIGN THE ARBITRATION
AGREEMENT.
When you go to a nursing home for the very first time, they are going to ask you to sign a stack
of documents. You believe, mistakenly, that you have to sign everything that is put in front of
you for your loved one to be admitted. Instead, you have a right to refuse to sign an arbitration
or dispute resolution agreement. That's right. No matter how much the admission coordinator
cajoles, pushes, attempts to manipulate, suggests, hints or recommends you sign that
document, DO NOT SIGN IT.
II. Why not sign the arbitration or the dispute resolution agreement?
Well, that document is not being given to you for your benefit. Instead, it is being given to you to
benefit the nursing home. They want to lock you in from the beginning, with no reciprocal
benefit to you, in a contract that will allow them to send any claim you or your loved one has
against the nursing home to arbitration over a Circuit Court of Law. In Court, your peers in the
community will determine the value of the claim and what they feel is the correct amount of civil
punishment (by assessing money damages) should be placed on the facility. Often, your peers
will assess a case similarly to how you will assess a case, and they, rightly, will be very upset
with bad, harmful, negligent or wanton care. Alternatively, a sole Arbitrator, since they are often
a member of another community, with little or no interest in the land you call home, will not have
the same level of disdain for the nursing home actions, and often, will assess damages at an
amount less than what your peers see as the level of appropriate civil damages. Thus, in
arbitration, the value of your case may be discounted to favor the Defendants, not you.
Think of it this way. Why do something now that I can do later at no cost? An arbitration
agreement is just a document that locks in the FORUM for a future dispute, but please take
note, the nursing home will always want to go to arbitration, now or later, so if you decide it is in
your best interest, later, to go to arbitration, you and the nursing home may agree to go to
arbitration. There is almost a 100% chance that they will agree, at any time, to go to arbitration.
Why is the nursing home so eager to go to arbitration? Well, think of it this way, a business
always wants to make money or save money. The nursing home is generally capped on what
they can make off you or your loved one based on federal regulations and insurance/medical
provider contracts. The nursing home, however, can save thousands, hundreds of
thousands to even millions of dollars, if you sign their arbitration agreement. Essentially,
they make, arguably, millions of dollars every time an arbitration agreement is signed, and by
signing the arbitration agreement, you are giving the nursing home money. That is why they
want you to sign. They want you to give them a future interest in any claim (by removing the
value to your loved one), for nothing. In a very real way, this is a business decision that you
have no idea what you are agreeing to. You give the nursing home an ability to save thousands,
hundreds of thousands to even millions of dollars and in return they give you NOTHING of
value. Please remember, however, you do not have to give the nursing this FREE and
VALUABLE benefit, just DO NOT SIGN THE ARBITRATION AGREEMENT, and if your loved
one has a claim, then your peers in the community will decide the value of the claim.
III. TAKE ACTION - lay down your pen to win
When you go to any casino, there are no clocks on the walls and real professional casino places
the gambling as far as they can away from any windows. They want you to fall into a hypnotic
trance where you have no idea of time, day or night, and you gamble until the money runs out
(nothing to interrupt you). Well, just think of every time you walk into a nursing home, that they,
also, want you to fall into a hypnotic state, where the documents in front of you appear routine
and innocuous. Alas, this is just some sort of misdirection, deception or planned trickery. They
want to make you believe that all documents they give you are of equal simple weight, but
instead, they will slip one of monumental importance and legal implications titled DISPUTE
RESOLUTION AGREEMENT or ARBITRATION AGREEMENT. For example, other documents
want to know a person to contact, if your loved one wants have hair keeping services, and then
in the midst of these type of simple housekeeping and personal care decisions they have a
document that, if you sign it, you will likely diminish the value of any future claim against the
nursing home by 50% or more. So, with your signature you give the nursing home a gift that is
to the detriment to you and your loved one. Further, keep in mind, the more people that sign
arbitration agreements, the greater the savings to the nursing home that equates into millions of
dollars saved over several years, if not in just one year. With that greater savings to the nursing
home, they have less and less incentive to implement safeguards to provide good care. The
nursing home is not necessarily evil for doing this. They are just trying to lessen their costs,
make more money, and spend less money on care improvements, and by signing the arbitration
agreement, you are letting them get away with it. It is as if you have signed a document to give
them everything in your banking account. They did not steal it...you gave it to them.
In this case, the old time maxim “the pen is mightier than the sword,” is so true, and all you have
to do is - LAY DOWN YOUR PEN TO WIN.
So, how do you keep the nursing home from raiding your bank account? YOU REFUSE TO
SIGN THE ARBITRATION AGREEMENT. You do not have to sign it. In fact, there are federal
regulations that state that you are to be told explicitly that you do not have to sign, that
arbitration cannot be a condition of admission, and you have thirty days to reject the arbitration
agreement. See (42 C.F.R. § 483.70(n)) (below). Please read this - you do not have to sign
an arbitration agreement for your loved one to be admitted to a nursing home - you can
refuse to sign the document and your loved one must still be admitted.
Some of you may remember the story of David versus Goliath. You may remember some of the
details of how Goliath defeated everyone and then came along David with a slingshot (and
God's grace). If you remember the story, David did not just show up, with God doing all the
work, including knocking over Goliath. Instead, David TOOK ACTION. He used the slingshot to
defeat Goliath (with God’s help). You have to do the same here. You MUST REFUSE TO SIGN
THE ARBITRATION AGREEMENT. Under the law, you have been given a strong tool to allow
you to go to Court should a claim arise in a nursing home setting, but you must take action, by
REFUSING TO SIGN THE ARBITRATION AGREEMENT. It is your slingshot. You must lay
down your pen to win. David did not defeat Goliath by sitting on the sidelines, instead, he
TOOK ACTION.
Realize that the power invested in you by the law is so great, that some in the nursing home
industry have gone to great lengths to try to overturn the law. For example, Northport Health
Services ("NHS"), a seemingly small little corporation situated in a corporate park in Northport,
Alabama, may seem like an innocent little operator of nursing homes. (insert photo of NHS)
Appearances can be deceiving, and instead, Northport Health Services is a major nursing home
operator, controlling, directly or indirectly, 150 nursing homes in several states.
The names of these facilities include:
Northport Health Services of Arkansas, LLC, doing business as
Springdale Health and Rehabilitation Center; NWA Nursing
Center, LLC, doing business as The Maples; Ashland Place
Health and Rehabilitation, LLC; Aspire Physical Recovery
Center at Cahaba River, LLC; Aspire Physical Recovery Center
at Hoover, LLC; Aspire Physical Recovery Center of West
Alabama, LLC; Athens Health and Rehabilitation, LLC; Civic
Center Health and Rehabilitation, LLC; Columbiana Health and
Rehabilitation, LLC; Cordova Health and Rehabilitation, LLC;
Crossville Health and Rehabilitation, LLC; Florala Health and
Rehabilitation, LLC; Georgiana Health and Rehabilitation,
LLC; Gulf Coast Health and Rehabilitation, LLC; Hunter Creek
Health and Rehabilitation, LLC; Huntsville Health and
Rehabilitation, LLC; Jacksonville Health and Rehabilitation,
LLC; Legacy Health and Rehabilitation of Pleasant Grove,
LLC; Lineville Health and Rehabilitation, LLC; Luverne Health
and Rehabilitation, LLC; Moundville Health and Rehabilitation,
LLC; Northport Health Services of Arkansas, LLC, doing
business as Covington Court Health and Rehabilitation Center,
doing business as Fayetteville Health and Rehabilitation Center,
doing business as Springdale Health and Rehabilitation Center,
doing business as Legacy Health and Rehabilitation Center,
doing business as Paris Health and Rehabilitation Center;
Northport Health Services of Florida, LLC, doing business as
Crystal River Health and Rehabilitation Center, doing business
as Ocala River Health and Rehabilitation Center, doing business
as Daytona Beach Health and Rehabilitation Center, doing
business as St. Augustine Health and Rehabilitation Center,
doing business as West Melbourne Health and Rehabilitation
Center; Northport Health Services of Missouri, LLC, doing
business as Joplin Health and Rehabilitation Center, doing
business as Webb City Health and Rehabilitation Center, doing
business as Carthage Health and Rehabilitation Center, doing
business as Warsaw Health and Rehabilitation Center, doing
business as Pleasant Hill Health and Rehabilitation Center;
Northway Health & Rehabilitation, LLC; Oak Knoll Health and
Rehabilitation, LLC; Opp Health and Rehabilitation, LLC;
Ozark Health and Rehabilitation, LLC; Palm Gardens Health
and Rehabilitation, LLC; Park Manor Health and
Rehabilitation, LLC; Prattville Health and Rehabilitation, LLC;
South Haven Health and Rehabilitation, LLC; South Health and
Rehabilitation, LLC; Sumter Health and Rehabilitation, LLC;
Tallassee Health and Rehabilitation, LLC; Valley View Health
and Rehabilitation, LLC; Wetumpka Health and Rehabilitation,
LLC; AFNC, Inc., doing business as Eaglecrest Nursing and
Rehab; Beebe Retirement Center, Inc.; BNNC, Inc., doing
business as Alcoa Pines Health and Rehabilitation; BVNC, Inc.,
doing business as Alcoa Pines Health and Rehabilitation;
CNNC, Inc., doing business as Corning Therapy and Living
Center; FPNC, Inc., doing business as Twin Lakes Therapy and
Living; GVNC, Inc., doing business as Gassville Therapy and
Living; HBNC, Inc., doing business as Southridge Village
Nursing and Rehab; HLNC, Inc., doing business as Heritage
Living Center; HSNC, Inc., doing business as Village Springs
Health and Rehabilitation; JBNC, Inc., doing business as
Ridgecrest Health and Rehabilitation; Jonesboro Care and
Rehabilitation Center, LLC, doing business as St. Elizabeths
Place; JRNRC OPS, Inc., doing business as James River
Nursing and Rehabilitation; Linco Health, Inc., doing business
as Gardner Nursing and Rehabilitation; MHCNC, Inc., doing
business as Care Manor Nursing and Rehab; MLBNC, Inc.,
doing business as Pioneer Therapy and Living; MMNC, Inc.,
doing business as The Lakes at Maumelle Health and
Rehabilitation; MSNRC OPS, Inc., doing business as Magnolia
Square Nursing and Rehab; Nashville Nursing & Rehab, Inc.;
Northwest Health and Rehab, Inc., doing business as North
Hills Life Care and Rehab; OCNC, Inc., doing business as
Silver Oaks Health and Rehabilitation; OR OPS, Inc., doing
business as Oak Ridge Health and Rehabilitation; PM OPS,
Inc., doing business as Dierks Health and Rehab; RTNC, Inc.,
doing business as Rector Nursing and Rehab; Salco NC, Inc.,
doing business as Evergreen Living Center at Stagecoach; Salco
NC 2, Inc., doing business as Amberwood Health and
Rehabilitation; SCNC, Inc., doing business as Spring Creek
Health & Rehab; Senior Living Management Group, LLC,
doing business as Birch Pointe Health and Rehabilitation;
SLNC, Inc., doing business as Southfork River Therapy and
Living; SRCNC, Inc., doing business as The Crossing at
Riverside Health and Rehabilitation; Timberlane Care and
Rehabilitation Center, LLC, doing business as Timberlane
Health & Rehabilitation; TXKNC, Inc., doing business as
Bailey Creek Health & Rehab; WCNC, Inc., doing business as
Katherines Place at Wedington; Westwood Health and Rehab,
Inc.; Windcrest Health and Rehab, Inc.; WRNC, Inc., doing
business as Chapel Woods Health and Rehabilitation; Apple
Creek Health and Rehab, LLC; Ashton Place Health and Rehab,
LLC; Atkins Care Center, Inc.; Belvedere Nursing and
Rehabilitation Center, LLC; Bradford House Nursing and
Rehab, LLC; Briarwood Nursing and Rehabilitation Center,
Inc.; Cabot Health and Rehab, LLC; Chapel Ridge Nursing
Center, LLC; Colonel Glenn Health and Rehab, LLC;
Dardanelle Nursing and Rehabilitation Center, Inc.; Nursing
and Rehabilitation Center at Good Shepherd, LLC; Greenbrier
Care Center, Inc.; Greystone Nursing and Rehab, LLC; Heather
Manor Care Center, Inc.; Hickory Heights Health and Rehab,
LLC; Innisfree Health and Rehab, LLC; Jamestown Nursing
and Rehab, LLC; Johnson County Health and Rehab, LLC;
Country Club Gardens, LLC; Lakewood Health and Rehab,
LLC; Legacy Heights Nursing and Rehab, LLC; Lonoke Health
and Rehab Center, LLC; Oak Manor Nursing and Rehabilitation
Center, Inc.; Perry County Care Center, Inc.; Quapaw Care and
Rehabilitation Center, LLC; Robinson Nursing & Rehabilitation
Center, LLC; Russellville Car Center, Inc.; Salem Place
Nursing and Rehabilitation Center, Inc.; Sherwood Nursing and
Rehabilitation Center, Inc.; Shiloh Nursing and Rehab, LLC;
Stella Manor Care Center, Inc.; Superior Health & Rehab, LLC;
Eufaula Care Center, Inc.; Cherokee County Nursing Center,
Inc.; Parks Edge Care Center, Inc.; Hendrix Health Care Center,
Inc., doing business as Hendrix Health & Rehabilitation; Glen
Haven Health and Rehabilitation, LLC
As a result, when the federal regulations were implemented stating that arbitration was not a
condition of admission and that nursing homes were to tell residents that they did not have to
sign the arbitration agreement, Northport Health Services went to Court to overturn the
regulation. (insert case) The Court, however, denied their request to overturn the
regulation, which means LAY DOWN YOUR PEN TO WIN - REFUSE TO SIGN THE
ARBITRATION AGREEMENT.
What is very interesting is that this nursing home operator was so convinced that if they told you
that you did not have to sign, that you would not sign. In other words, Northport Health
Services, by their own Court filing, admits or concedes that the arbitration is not in your best
interest or something that you will not sign if you believe you do not have to sign it. Further,
they seem concerned that if there is a moment where the momentum of signing all those
documents at the time of admission is interrupted by having their admission coordinator say
"you do not have to sign the arbitration agreement," their fear is that you will never sign the
document. Their fear is not rooted in what is best for you, instead it is rooted in interrupting
what is best for them.
Now, we are not saying that all nursing homes are bad or all want you to sign arbitration
agreements. There are many that do not use arbitration agreements, although that number is
very small in comparison with all the operators in the industry. Also, there are some that follow
the federal regulation, but Northport Health Services, in a recent Alabama case in Crenshaw
County, Alabama (Luverne, AL), did not follow the regulation and told the Court that their opinion
is that the regulation does not benefit the resident.
Greg Foster, attorney at Foster Law Firm, P.C., represents a sister of a decedent, who has a
wrongful death claim against a Northport Health Services nursing home on behalf of her brother.
Foster said "in the Crenshaw County case, the facility [Northport Health Services] ostensibly
argued that the federal regulations are not for the benefit of the resident, and instead, if the
nursing home did not follow the regulation that is between them [the nursing home] and CMS
(Centers for Medicare & Medicaid Services)." He went on to say, “in our filings with the
Crenshaw County Court, we argued under Alabama law, the regulation does benefit the
consumer.” The ruling by the Court did not address that issue specifically, but the Court did
grant the nursing home defendants Motion to Compel the case from Crenshaw County Circuit
Court to an Arbitration forum. The Plaintiff has appealed the Court's decision to the Alabama
Supreme Court. In the end, such a position by the facility to ignore the federal regulations,
Foster said, "is horrible for consumers." The regulation appears to instruct a facility to advise a
resident of their rights, much like Miranda rights do in an arrest situation. Foster goes on to say,
"the fact that the facility does not want the resident to understand the law and their rights is very
telling about the viewpoint some nursing home operators have of their residents and their
families."
Not all operators are bad, but clearly, at least one, if not all, of the nursing homes under the
Northport Health Services umbrella are not concerned about following the regulation for the
benefit of residents or informing residents of their rights under the regulation. As is shown by
their Arkansas court filing, they want the regulation to disappear and have zero obligation of
providing any warning or notice to consumers. They may or may not follow the regulations for
their retention of Medicare or Medicaid dollars, but their Court filings indicate they will not follow
the regulation, if their only obligation is for the benefit of the resident. Clearly, they have no
interest in doing that as is shown throughout this article. Northport Health Services
demonstrates that they consider their relationship with the loved ones of residents as
adversarial when it comes to protecting their interest in pushing cases to arbitration. Please
remember, the nursing home is not operating in your or your loved ones best interest when it
comes to arbitration. Instead, they are operating in their own self-interest, and have gone to
Court to overturn the regulation that provides benefits to consumers. They want to provide no
additional warning or notice to a consumer at the time an arbitration agreement is shown to the
loved one of a potential resident of their facility.
Goliath is no easy adversary. David knew that, but in the end he took action. To defeat Goliath,
remember that the pen is mightier than the sword (and even the slingshot), and by laying down
your pen, you take the greatest action ever demonstrating your REFUSAL TO ACCEPT
ARBITRATION.
You have the power to defeat Goliath. It is up to you to do your part. Don’t let the “Devil” get
you.
If we can help you with any questions you have about nursing homes, nursing home admissions
or arbitration, please contact us at (205) 259-1678 or info@fosterlawnow.com
1) https://law.justia.com/cases/federal/appellate-courts/ca8/20-1799/20-1799-2021-10-01.html