Recent developments in the U.S. Supreme Court, Department of Health and Human Services, a Mississippi district court, and the New York Appellate Division, pertaining to mandatory arbitration in nursing home agreements necessitate an update of my prior column on this topic.1 At issue in each of these venues has been the enforceability of nursing home admission agreement provisions that require prospective resident to waive the right to a jury trial and to agree to resolve disputes through the arbitration process.
One of the most significant roles of an elder law attorney is advising the client who is in the hospital and requires placement in a nursing home. The decision frequently is made under the pressure of very narrow time constraints. The hospital demands a transfer under the threat of financial exposure for any delay and the nursing home demands a quick decision while the bed is available. In this fraught environment, the client is presented with an admission agreement and asks the elder law attorney for advice. The various developments currently being decided will affect the legal opinion rendered to clients regarding provisions to arbitrate any and all past, present or future disputes between the resident and the nursing home.
