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When my Mom was admitted to the nursing/rehab facility directly from the hospital after surgery, they gave me many, many papers to sign. The Admission Agreement was like 50 pages long. I was NOT legally my Mom's POA at the time but she was pretty "out of it" and couldn't sign any documents for herself. I was VERY CAREFUL to not sign anything that made me financially responsible for her stay there. During this process, I was also presented with a 5 page "Arbitration Agreement" of which I refused to sign at the time (either did my Mom as she couldn't physically sign anything at that moment). I told them I wanted to read it over. They were okay with that at the time.

A couple of weeks after her admittance, I retained an excellent Elder Law Attorney and I was "legally" made my mother's POA. I gave him copies of the Admission Agreement and all other paperwork and we have been working on many, many legal documents (including getting her Medicaid Application going). I told him that I NEVER signed the Arbitration Agreement. I have since read the entire Arbitration Agreement and there is NO WAY I want to sign this document as I would give up any right to sue the facility should they harm my mother. Fast forward 2 months since my mother's admission, and the Admissions Coordinator is pressuring me to sign the Arbitration Agreement. I again told her I needed to speak to our attorney before I sign anything more and she didn't seem too happy about that.

I will be speaking with our attorney shortly but I just wanted to know if anyone else came across this document? I know from reading and researching that this type of document is being "inserted" in the mounds of paperwork the facility gets the patient/families to sign at admission and the horror stories of regret that they did so after their loved one was injured. Were your coerced into signing this document? Can the rehab/nursing home discharge your loved one after 2 months of being in their care for refusing to sign this? I'm no expert, but just reading the legalize contained in this 5-page document causes me to conclude that signing this is NOT in my Mom's or my (as POA) best interests. Thoughts? Are there any Elder Law experts on this forum who can opine?

Yes, I know I can ask my elder law attorney, but it's now the weekend and I was just looking for others' experiences. I live in New York State.

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CMS 3260-P is still just hanging there; I can't find a final rule.
Last summer, a lower court in New York refused to enforce an arbitration agreement in a nursing home admission agreement, in part because the judge believed that its enforcement was contrary to New York’s Public Health Law prohibiting arbitration of nursing home claims based on violations of a resident’s rights. That decision was recently overturned by the Appellate Division, First Department, in Friedman v. The Hebrew Home for the Aged at Riverdale, 2015 Slip Op. 06478 (August 11, 2015).
So quote that one to the person who is nagging you.
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When is the CMS deadline?
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Both Centers for Medicaid Services (CMS) and the association of State Attorneys General are opposed to requiring new admissions to sign binding arbitration agreements. They are pressuring you to sign before the CMS deadline takes effect.
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Please let me know what you find out. I just admitted my mom to
a nursing home this weekend and I have to sign a lot of paperwork.
They have about two pages of incidents that can happen in their
nursing home, and expect me to sign, basically waiving our rights, if
their happens to be any negligence on their part. I am assuming they
will kick her out if I do not sign all of the paperwork.
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Windy's right, but mandatory agreement to what we might consider offensive terms is commonplace. Have you ever read any of the obnoxious TOS in the "shrink wrap" software agreements? If not, read Microsoft's TOS, read the Facebook TOS, read CNN's TOS just for visiting their site.

It also extends to employment applications. I've refused to agree to the no liability clauses in background checks, which could relieve not only the company but even a neighbor who's a junkie (one of mine was) if he/she said I was a floozy and engaged in boisterous, disruptive activities. I would NEVER waive my rights to sue on that basis. So obviously the job interview stopped at that point. But I have no regrets.

One of the problems I think is that people have become litigious, encouraged by the 1-800-SUE THEM personal injury attorneys. Instead of thinking "discussion, compromise and resolution", people think "I'll sue them!"

I see that occasionally on this forum and think to myself that the person making this threat has absolutely no idea what the requirements are to sustain a litigation. It's just an idle threat because their claim has neither merit, substance, or proof, nor is the individual able to comprehend that.

Nursing homes' use of these arbitration agreements are obviously for their benefit, and they do literally hold all the cards. But they also have a lot of liability.

What I've tried to do is address these issues up front, stating my concern and reservation, and ask specifically about various possibilities and how we could handle them to avoid getting to the point of arbitration.

Usually taking that kind of conciliatory, "let's work it out", approach works better, and it has in the past for me.

Believe me, if I didn't have to sign some of these egregious agreements (no alliteration intended), I wouldn't. The issue I try to keep in mind is what's best at this time? If the facility is a good one we've been to before, then I try to find ways to solve any problems that might arise within a cooperative framework. And this has always worked with one exception when I made a drastic mistake in not interviewing at the facility during dinner rush hour when the staff would be most pressed, and help for patients would be limited.

I understand your concern; there's no question in my mind that the corporate world has the upper hand.

You might want to even consider adding your own qualifier, a letter that states that you desire to work out any issues immediately on their occurrence, but are signing the arbitration agreement because it's mandatory although you expect and anticipate that staff will be willing to work with you to address any issues that arise. That's what I would do in your situation.

Add a date and time when you deliver this qualifier, and obviously keep a copy for yourself.
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These thing are everywhere. Sometimes people don't even know they've signed them, in bank credit card applications for example.

It's interesting that they admitted her with out the arb clause signed. Now, will they kick her out? Maybe. My guess is that ultimately the facility will prevail as they have a unilateral right to set conditions and customers have a right to go elsewhere. The problem is, you can't get away from this crap if you go elsewhere.

Let us know how this works out.
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