Don’t Sign That Mandatory Arbitration Agreement, Phase II: CANHR Launches New Website and Jumps Into Federal Case to Protect Resident Rights
The Spring issue of The Advocate introduced the CANHR campaign to avoid mandatory pre-dispute arbitration agreements in nursing homes (and other long-term care facilities). We explained how arbitration agreements are often presented at the time of resident admission and signed unwittingly, waiving the right to seek justice in a court of law. We urged residents and their representatives to “don’t sign them!” because the agreements almost always favor the facility.
To further educate consumers on the harms of pre-dispute arbitration agreements, CANHR has launched a new website http://canhr.org/arbitration. The site includes basic information on arbitration agreements and the insidious role of such pre-dispute agreements in nursing home admissions. The relevant laws are available on the site as well as articles and helpful links.
The Don’t Sign It Campaign is more urgent than ever given that arbitration agreements may soon prevent residents from getting access to justice to enforce their own rights. On July 25, CANHR filed a petition to intervene in one of the most important California nursing home cases in history. The case was brought by the nursing home industry against the State of California in a federal court in Fresno. The industry is seeking to rescind a state law that guarantees nursing home residents’ access to the courts in cases where their rights have been violated. If the suit is successful, most nursing home residents will not be able to meaningfully enforce their rights.
In 1982, when state enforcement of nursing home resident rights was considered soft, the legislature armed residents with a private right of action in cases where their rights were being violated. In order to protect this right, the legislature added that “an agreement by a resident ... to waive his or her rights to sue pursuant to this subdivision shall be void as contrary to public policy.” (California Health and Safety Code § 1430(b)) Thus, even if a resident has signed an arbitration agreement, she maintains the ability to file a lawsuit if it concerns her state or federal rights.
In 2013, when state enforcement of nursing home rules has become even more slack, the right to sue for rights violations has become a powerful tool for preventing abuse and neglect and guaranteeing decent quality of care. Rights violation lawsuits have led to multi-million dollar cases against nursing home chains that chronically understaff their facilities, groundbreaking cases to stop the misuse of chemical restraints, and simpler cases to protect residents’ privacy and dignity. In addition, the immunity of resident rights cases from compulsory arbitration has kept many important elder abuse and neglect cases in courts, where residents can gain fuller recoveries and get judge-signed orders to stop illegal nursing home practices.
You can find more information about the federal case on the new CANHR arbitration agreement website at http://canhr.org/arbitration/valley_view.html and view important case documents. CANHR hopes to thwart the lawsuit and protect resident rights, but if we are not successful, it will be more important than ever for consumers to refuse to sign mandatory pre-dispute arbitration agreements.