If you’ve ever helped an elderly loved one seek nursing home care, or if you’ve ever acted as an agent for your loved one when seeking care, it’s possible that you or your loved one has signed an admission agreement that requires pre-dispute binding arbitration to settle any disputes should they arise from your loved one’s care. Arbitration is a form of dispute resolution where a neutral decision-maker is chosen by one or both parties to resolve a dispute. Typically, when you enter into an arbitration agreement, you are waiving your rights to sue and your rights to a trial by jury, to enter into a class action lawsuit, or to receive any judicial review aside from a court’s decision to set aside the agreement. While post-dispute arbitration, meaning arbitration is used to settle a dispute after it arises, can be advantageous, pre-dispute arbitration agreements when it comes to long term care facilities may not be as fair as it can be difficult to anticipate what disputes may arise in the future. In many ways, a pre-dispute arbitration agreement acts as a shield for nursing facilities since they cannot be sued in situations where they might be or should be liable. Pre-dispute arbitration agreements are also somewhat concerning because when seeking nursing home care, anticipating the possibility of a future dispute is probably the last thing on your mind, and there may not be time to consult with an elder law attorney for advice regarding future dispute resolution.
Currently, the enforceability of these pre-dispute agreements is at issue in the U.S. Supreme Court, the U.S. Department of Health and Human Services, a Mississippi district court, and the New York Appellate Division. What happens in these venues will dictate how elderly clients will be advised regarding arbitration agreements. For example, while oral arguments have already been held in the U.S. Supreme Court case, Kindred v. Clark, the Court has yet to decide whether an agent for someone entering a nursing home has the authority to waive a jury trial, meaning a mandatory pre-dispute arbitration agreement contained in the nursing home contract would not be enforceable if the agent did not have the authority to waive access to the courts. In addition, a new rule from the HHS would prohibit facilities from requiring pre-dispute arbitration agreements. However, this portion of the HHS rule has been enjoined until further notice. The New York Appellate Division has also addressed the issue finding that the pre-dispute arbitration agreement at issue was not unconscionable and was enforceable. This decision may be especially troubling to New York residents who might be seeking long term care.
If you or your loved one is seeking long term care, it is important to consult with an experienced New York elder lawyer prior to making any decisions regarding your care. Even if you’ve already entered a care facility and have questions about your rights, an attorney who is knowledgeable about elder law can provide guidance during a vulnerable time. Call the Law Office of Cohen & Jaffe, LLP at (516) 358-6900 or contact us via our website. We are available 24/7 so get in touch with us at any time!