Friday, October 7, 2022

Arbitration Has Come to Senior Living. You Don’t Have to Sign Up.

As residents enter into a new nursing home or assisted living facility, they often take on a mountain of paperwork in a moment that can be full of stress, such as after a hospitalization or health crisis. What many residents may not know is to look out for arbitration clauses tucked in amongst the mountain of paperwork.

Arbitration clauses appear frequently in the business world, although are rarely noticed by consumers signing the agreement. They are often seen in cellular services contracts, online marketing contracts, financial contracts, and more recently, in long-term care facility contracts. Brookdale Senior Living, the largest long-term care company in the United States, says that they include an arbitration clause in their standard contract which “allows parties to resolve a dispute in a more expeditious and cost-efficient manner than litigating in court.”

Advocates for residents say that compulsory arbitration has residents making too firm of a commitment up front. Many things can go wrong in a long-term care facility and families are upset about losing their day in court, with fears that arbitrators may be less sympathetic than a jury might be. Other concerns include that it is essentially a “gag rule,” depriving the public of knowledge about horrific things that can happen in a particular assisted living facility.

States have taken different approaches on enforcement. A federal court in Kentucky ordered arbitration after a resident died in a nursing home in 2016, while a California court refused to compel arbitration in 2020 over an elder abuse and wrongful death claim. 

For more information see Paula Span “Arbitration Has Come to Senior Living. You Don’t Have to Sign Up.”, The New York Times, September 24, 2022.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.

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