Art Gharibian had the honor of being published in the September issue of Advocate Magazine. His article talked about arbitration agreements, their complexities, the laws surrounding them, and more. Arbitration is a major issue in the nursing home industry, often trapping residents and their families in an agreement that rarely sides with them and often protects nursing homes. This poses a huge problem because arbitration agreements undermine a complainant’s right to have their case heard by a judge and jury in a court of law. Here are five takeaways from Art Gharibian’s Advocate Magazine article on arbitration.
Transparency & Conditions
Two of the most important things to know and remember is that 1) a nursing home cannot make signing an arbitration agreement a condition of admission, and 2) they must be transparent and separate an arbitration agreement from the rest of the admission contract. It must be clear that an arbitration agreement is being presented and that the resident and their representatives are not required to sign it.
“An arbitration agreement must therefore contain the following advisory in a prominent place at the top of the proposed arbitration agreement, in bold-face font of not less than 12-point type: “Residents shall not be required to sign this arbitration agreement as a condition of admission to this facility.” (Cal. Code Regs., tit. 22, § 72516, subd. (d).)”
Additionally, an arbitration agreement cannot “require a resident to waive their ability to sue for violations of residents’ rights. (Health & Saf. Code, §§ 1430, subd. (b) & 1599.81, subd. (d).)”
This transparency and these conditions are key to protecting residents and safekeeping their constitutional and human rights.
30 Rescind Period
According to Code Civ. Proc., § 1295, subd. (c) there is a 30 period during which residents, or their legal representative, can rescind the arbitration agreement. These 30 following the initial signing allow for unexpected death as well as change of mind or realization that it was signed without being acknowledged.
Fees and Costs
“If plaintiffs are unable to pay the costs of arbitration despite signing an agreement requiring them to pay their pro rata share of the arbitration costs, then the defendant must either pay the entire cost of the arbitration or waive its right to arbitrate the dispute.”
Essentially (according to Weiler v. Marcus & Millichap Real Estate Investment Services, Inc. (2018) 22 Cal.App.5th 970, 981.) plaintiffs can seek relief from the arbitration process if they are unable to afford it.
Neutrality & Elder Abuse Cases
When it comes to elder abuse cases, arbitration works much the same way it does for other areas of law. If both parties stipulate to arbitration, or when a court compels it, then a neutral arbitrator must be selected. In the event of arbitration for elder abuse cases, it is important that the arbitrator has experience in elder abuse disputes.
“The arbitration hearing is like a trial, with both sides presenting evidence and arguments to the arbitrator.”
Both sides may gather evidence, though time before arbitration is often limited. It is then up to the arbitrator to issue a written decision and an award.
Advocate Against Arbitration
The nature of arbitration agreements allows for secrecy within the nursing home industry. Without bringing cases to a court, cases are quietly resolved, and the nursing home sufferers minimal losses, is not held accountable, and protected from public scrutiny. With public lawsuits, nursing homes are dragged into the spotlight, and the results of the trial can enact policy changes crucial to protecting the most vulnerable in our society. It is crucial that advocates voice their concern and “challenge the validity and enforceability of these agreements to protect the rights and well-being of nursing home residents.”
Read the full Advocacy Magazine article here.
If you or a loved one have been the victim of nursing home abuse or neglect, call Gharibian Law (877-460-1187) today for a FREE consultation and the best legal representation.
