Misconceptions of Nursing Home Arbitration
INsight Interview with David Farnbauch from 11/02/2016 explaining the misconceptions of nursing home arbitration.
Q Welcome back to INsight. We’re with Dave Farnbauch, from Sweeney Law Firm, talking about, this is an interesting topic because we’ve talked about this topic before, nursing home arbitration agreements, where I go into the nursing home and they say if anything ever happens we’re going to go into arbitration and you’re like, that sounds great.
A Yes, people don’t realize what they’re signing, Dirk. When you go into a nursing home and you get admitted, you sign a ton of paperwork and one of the things they stick in front of your nose, that people have no idea what they’re signing, is it’s what we call in our business a forced arbitration agreement. It’s just basically a simple agreement that says if anything happens to your loved one in the nursing home and you want to make a claim against us for injuries or death or whatever, you’re going to be presenting that case through arbitration and they’re going to select, in that contract that you sign, the forum for the arbitration and it’s probably a forum that you don’t really want to be in, if you want a fair shake.
Q So, what sounds good because, again, it seems like, oh, arbitration would be cheaper, it would be faster, it would be, you’re telling me it’s more likely I’m going into a, I don’t want to say a no win situation, but a stacked situation?
A Right. It’s not like going into the court system, where you’re going to go into a leveling playing field. These arbitrators that they select to serve as arbitrators in nursing home cases, there’s a reason why they’re selected to serve as arbitrators because they’re probably going to be partial to the nursing home’s position.
Q The last time we talked about this, weren’t these being discouraged or outlawed?
A Yes, I mean, this is a good example, Dirk, of elections have consequences. Back in September of 2016, the Centers for Medicare and Medicaid, that’s the entities, the governmental entities that fund nursing homes, they announced a final rule banning these pre-arbitration, forced arbitration agreements for nursing homes that receive federal funds, which is basically all nursing homes. So, they banned these agreements. Now, with the election, the new administration, CMS just announced that they’re going to issue a new rule sort of repealing the rule that you couldn’t use these arbitration agreements. So, elections have consequences.
Q So, is it possible, let’s say I haven’t admitted a loved one yet into a nursing home, is it possible that I just pass on that form and just skip it?
A Well, that’s what we recommend that you do. I mean, when people are shopping around trying to make a good decision for their loved one about which nursing home to select, certainly have your radar up to see if they’re going to present you with a forced arbitration agreement and my advice is if you want to look at a facility that wants you to sign a forced arbitration agreement, go to the next nursing home that doesn’t offer that because there’s a reason they want you to sign an arbitration agreement.
Q What if I’m already there, I already did sign this and something happens, have I really lost every right I have?
A You know, that’s an interesting question. I would say that it might be a condition to stay at the nursing home. Say I signed this, but I’ve learned that this is maybe not necessarily a good thing for my loved one. I don’t want to stay here unless we sign a new agreement, where that’s not part of the admission.
Q Hmm, that’s a lot to think about. All right. So, after, though, an injury, can I still come to see you or is —
A You can. I mean, even if you’re in a nursing home that has a forced arbitration agreement or one that doesn’t, if your loved one is injured in a nursing home, I believe that, you know, we are the law firm in Fort Wayne that you would want to call because we’ve been doing this for a long time.
Q It’s one of those, again, who knew, but people only do this usually once or twice, where they’re putting a loved one into a nursing home and so, you know, you go in, you assume everything is going to be good. If you’d like to find out more about what steps you can take and what to avoid, go check them out online here at Sweeneylawfirm.com. We’ll be right back on INsight.