When picking a rehab or nursing home, everyone would love the luxury of time and their own private attorney to review the admission paperwork. Unfortunately, that is simply not the case in the real world.
In many cases, a nursing home or rehab admission is totally unplanned. In a typical scenario, mom or dad falls at home and fractures the hip for which there is an entire hip replacement. The family is surprised when the day after the surgery, mom or dad begins her rehab and there is a visit from the social worker asking about where they will go next. In many cases, the family is told their parent cannot go home and must go to a rehab. In other cases, the family has to make the difficult decision that their parent cannot go home and must go into a nursing home because it is too dangerous at home. The family – who has no experience picking a nursing home – is handed a list of nearby places. Most families pick the facility that is nearest to their home.
At admission, the family will meet with an admissions director. Usually, a long, complicated, and difficult to read contract is presented to the family at admission. These documents are typically over 20 pages long, with attachments and addendums. In some cases, they require an advanced degree to understand. In most cases, the admission director will simply flip pages and tell the family to “sign here.”
Somewhere, buried in the middle of all this, in complex legal terms, is the arbitration clause. This is a paragraph or page that says if something terrible happens, or you loved one is killed, you give up your right to sue in court. Instead, you will go before a private mediator – a person hired to resolve the dispute. There is no jury, judge, or right to appeal, just the private mediator whose decision is totally binding. The arbitrator is not accountable to anyone.
The admissions people are hoping you miss the importance of this in the document, because no matter how much the document says that arbitration saves you time and money, this is not true. The reason companies want arbitration is because studies show that awards at arbitration are smaller than in court – by about 35%!
To be clear, you get absolutely nothing out of signing pre-dispute arbitration documents. You can always agree to it later after something terrible happens.
In New Jersey, pre-dispute forced arbitration in nursing home and rehab admission paperwork used to be totally and completely illegal. This makes sense because a person putting a loved one in a nursing home is making a difficult emotional decision. The family has very little bargaining ability. In many cases, mom or dad will already be in the building, and many people I talk to are afraid to “rock the boat,” and don’t want to be confrontational. As a result, most people will probably sign just about anything put in front of them to get a person the care they need.
Unfortunately, these clauses are now legal. Be careful what you sign. If you find arbitration language in the admission paperwork, you are certainly entitled to ask about it and find out exactly what it means before you sign anything. If it is non-negotiable, this may raise concerns for you about the care the facility is prepared to deliver. No one who has sat in my office ever imagined the poor care and horrific outcomes their moms and dads would suffer when they were put in the nursing home. You always hope for the best but prepare for the worst. You have an absolute right to understand exactly what you are giving away before you sign an agreement.