and enforce arbitration agreements in admission contracts. Until that decision, patients and
nursing homes with disputes had no option but to litigate – expensive and time consuming for all
parties. Buffalo attorney Julie Bargnesi brings a unique perspective to this issue; currently an
attorney who represents health care providers, she was formerly a nurse in a hospital where she
advocated for patients.
In most states, arbitration agreements are standard in nursing home admission contracts,
except for New York State. Patients and providers did not enjoy the benefits of arbitration,
having to instead go through the expensive and lengthy litigation route, as detailed in a recent
Buffalo Law Journal article, “Nursing home arbitration enforceable in NYS.”
In New York, as well as several other states, the law did not allow for arbitration agreements to
settle incidents that happened in nursing homes. These states refused to enforce arbitration
clauses in nursing home admission contracts. Disputes went to court.
However, in 2012, the issue reached the U.S. Supreme Court in Marmet Health Care Center v.
Brown. That decision struck down any state law that didn’t permit an arbitration provision in the
nursing home matter. The ruling held that the Federal Arbitration Act (FAA) overrules any state
law that says arbitration clauses in nursing home contracts aren’t enforceable for lawsuits
stemming from injury or death.
Despite the Supreme Court’s decision in 2012, the topic still isn’t well-known, the article
explained. But nursing homes have started adding the clause into patient contracts, and the
majority of families and residents are signing them. With the rise in litigation, the article says
that it’s at least a tool that nursing home owners can use to give them some protection from
Patients will still have protection, as cases can still be challenged in courts, and arbitration
agreements can be struck if they aren’t properly constructed.
The arbitrator is like a judge who sees both sides and may say, “He’s kinda right and she’s kinda
right, so I’m going to make everyone happy and split the baby.” Arbitration tends to be fairer.
Just like any contract, the article says that a court can review the arbitration agreement to make
sure it is legal. A contract can’t take advantage of the resident or his or her family, and a nursing
home can’t deny admission based on whether the arbitration agreement in the contract is
The article urges patients and family members to be aware of this arbitration agreement, which
will arbitrate all potential claims and waive litigation.
An Elder Law attorney can give you more information about these arbitration clauses and how
they are handled in your state.
Make an appointment to see an experienced Elder Law attorney before signing any nursing
Reference: Buffalo Law Journal (July 27, 2015) “Nursing home arbitration enforceable in NYS”