Those Pesky Pre-Dispute Arbitration Agreements for Skilled Nursing Facilities

Assisting a parent or loved one in seeking skilled nursing facility admission is no joke,  which is part of the reason it may be so liberating to laugh about what the snf admissions process may ask of adult sons and daughters of potential patients. Oh, the machinations for admission in an industry where admittance is not guaranteed and where trying to put your best foot forward (easy family to deal with; uncomplicated patient; commercially insured and so on) can bear some resemblance to a fraternity or sorority rush -  with all the frantic pleas to "please like me!" 

I have never seen this depicted more accurately and more achingly than in the 2007 movie "The Savages." Laugh-out-loud funny scenes where the adult brother and sister, played by Philip Seymour Hoffman and Laura Linney, try to work the system to get their Dad admitted to a badly needed snf bed are worth your viewing.  Aware, on some primitive level, that the snf holds all the cards, the two actors provide a tour de force performance painfully illustrating all the little ways they try to gain Dad's snf admission. My personal favorite is when they are coaching him on the mental status exam from behind the back of a snf admissions director. Desperation knows no bounds.

You laugh, of course,  because otherwise you might cry to see decent people brought so low by the desperation of their father's need for care.  Oh, and I especially like the scene where the brother and sister fight in one facility's parking lot on whether they are presenting their father in the most advantageous light. Now that I think of it, it really reminds me more of the fawning parents in children's beauty pageants who mouth the talent routine's song words and execute the talent routine's dance steps from the rear of the auditorium while their child is on stage or maybe something more like college admissions parental  drama in the tony suburbs.

In light of all of this painful and oddly hilarious information, why be taken back that many if not most snfs include a clause in their nursing home admission agreements requiring the signing party (capacitant older individual or responsible family member) to waive the right to a jury trial on many possible future claims against the snf and to agree to be bound, instead, by binding (often secret) arbitration.  These are  pre-dispute arbitration agreements and their scope extends to bar jury trial on claims of substandard care, as in the Kindred Nursing Centers opinion issued today by the Supreme Court.

Enforcement of contractual waiver of pre-dispute arbitration agreements is strongly favored under the Federal Arbitration Act.   Those of you  given pause by the negotiation of such a clause in a health care contract often entered into under incredibly time-pressed conditions just aren't getting out enough.  A few of those contractual waivers of jury trial rights in the snf contracts reached the Supreme Court this term. Of course the backstory of long-building industry use and acceptance, the pre-election federal government regulatory attempt to ban these agreements in snf contracts, the now published Trump Administration regulatory effort to roll back prohibitions on the use of these agreements at snf admissions may help explain why the opinion was published today, so late in the Supreme Court's term, but did nothing to alter the outcome. 

We can sleep well tonight knowing that snfs may enforce pre-dispute arbitration agreements signed by adult children of snf applicants under general power of attorney authority without any specific language authorizing jury trial waiver provisions. It would after all, make it "trivially easy" for a state like Kentucky to require under state law  a clear statement of such authority as a way to undermine the FAA.

And there you have it.  All contracts, including those often  made in extremis in the face of overwhelming health care need, are just contracts after all.

Strike the language you say? Refuse to sign off on that pre-dispute arbitration clause for Mom or Dad's snf? Ah, but the clause is essential for admission, as is the POA itself for many facilities. You, as adult child of an individual needing speedy admission to a snf, are the supplicant here. And don't forget it.

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