The Impact of Arbitration Agreements on Senior Living, 1 of 2

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What Have We Learned and Where Are We Going?


What is Arbitration?


What is Arbitration?

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It is a legal alternative to litigation where the parties to a dispute agree to submit their respective positions (through agreement or hearing) to a neutral third party (the arbitrator) for resolution.


The Arbitration Process

Select an Arbitrator or Arbitrators  Set a Hearing Date  Presentation of the Case  The Award 


What are the Benefits of Arbitration? ď Ž

Privacy - An arbitration hearing is a private meeting - the media and members of the public are not able to attend. The final decision is not published or directly available to others.

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Informality - The adversary elements of an open court hearing are far less evident in the less formal atmosphere of an arbitration. As a consequence, arbitration produces fewer barriers to the resumption of good working relationships.


What are the Benefits of Arbitration? ď Ž

Efficiency - An arbitration can normally be heard sooner than it takes to get court proceedings heard. Preparation should be less onerous, and the hearing should be shorter.

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Finality - There is generally no right of appeal, although the court has limited powers to set aside or remit an award.

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Flexibility - The procedures can be segmented, streamlined or simplified, according to the circumstances.


What are the Benefits of Arbitration? ď Ž

Choice of decision maker - For example, the parties can choose a technical person as arbitrator, so the meaning of technical evidence will be readily understood.

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Convenience - The hearings are arranged at times and places to suit the parties, witnesses, and arbitrator.







Discussion of the Signature Block The Resident should ALWAYS sign, especially if there is some question regarding competency.  Always err on the side that the Resident is competent.  The family members should ALL sign when possible. 


NEW ARBITRATION CASE IN MISSISSIPPI 

Vicksburg Partners, L.P. v. Stephens Stephens brought a negligence and wrongful death suit over the care her father received at a Vicksburg facility. When her father was admitted, Stephens serving as responsible party, her father, and a Vicksburg representative all signed an admission agreement containing an arbitration clause. The Court found that the clause was not “unconscionable.” The Court found that the admission was not urgent and the arbitration terms were “easily identifiable” within the form.


NEW MISSISSIPPI CASE 

The Court concluded that Stephens and her father were “two competent individuals signing a wellmarked, highly visible agreement which indicated very clearly that dispute resolution would be accomplished by way of arbitration.” The Court noted that the arbitration agreement did not change the parties’ rights to pursue legal action, it only changed the forum. “We have hopefully driven home the point for the benefit . . . Of those individuals or entities who find themselves involved with contracts which contain arbitration clauses. Arbitration is about choice of forum . . . Period.”


Recent Arbitration Case 

Cox v. NHC Healthcare  Mrs. Cox, age 77, was admitted to St. Mary's Hospital with chest pains and other symptoms and her husband, Mr. Cox, was no longer going to be able to care for her at home. Mr. Cox met at the nursing home with NHC's Admissions Coordinator and Mrs. Cox was not present at the meeting.  The Admissions Coordinator asked Mr. Cox to sign the nursing home's "Arbitration Agreement" on his wife's behalf, even though Mrs. Cox had not been diagnosed or adjudicated as mentally incompetent. He complied with her request.


 Sometime shortly after his wife's admission, Mr. Cox was also admitted to NHC's nursing home. On March 8, 2001, Mr. Cox passed away. Mrs. Cox, still a resident at the nursing, passed away on April 19, 2001.  Following her mother's death, the plaintiff filed suit for Mrs. Cox's wrongful death. NHC filed a motion with the court to dismiss the lawsuit and compel the matter to arbitration.  The trial court held an evidentiary hearing and NHC's Admission Coordinator was the only witness for the defendant.


WHAT QUESTIONS DO YOU THINK THE COURT ASKED?


Did Mr. Cox read the Admission Agreement?  She testified that she met with Mr. Cox and that he read and signed the Arbitration Agreement as Mrs. Cox's "legal representative." While acknowledging that she handled some 360 admissions a year, she claimed that she remembered that Mr. Cox read the Admission Agreement. When asked if and how she could remember at the time of the hearing, in September of 2002, that Mr. Cox had read the Admission Agreement some two years earlier, she responded "I do because all of my admissions read the contract. I see to that."


Why was Mr. Cox considered Mrs. Cox's legal representative? ď Ž

Although the Arbitration Agreement specifically defines the term "legal representative" as "anyone authorized by the patient to act on the patient's behalf", the Admissions Coordinator admitted that she did not receive an indication from either of the Coxs that Mr. Cox was authorized to sign on Mrs. Cox's behalf. She stated that she did not know if Mr. Cox had his wife's authorization to act on her behalf.


Why did the Admission Coordinator ask Mr. Cox to sign if he was not legally authorized to act on her behalf?  The Admissions Coordinator testified that she allowed him to sign the Admission Agreement simply because he was Mrs. Cox's husband.


Was Mrs. Cox competent at the time Mr. Cox signed on her behalf? The Admissions Coordinator did not question Mrs. Cox's competency and did not discuss the Admission Agreement with her, furthermore she did not give Mrs. Cox a copy of the document. She stated that she did not know whether Mrs. Cox was ever made aware of the terms and conditions of the Admission Agreement. Significantly, the Admissions Coordinator acknowledged that Mrs. Cox "was capable of understanding it", i.e. the Admissions Agreement.


One of her children described her as "fine mentally" and "very competent". All three of Mrs. Cox's children testified in rebuttal to the Admission Coordinator that they believed that their mother was fully competent when Mr. Cox signed the Admission Agreement on her behalf. None of the three children were aware of the document or any other conduct on her part authorizing her husband to act on her behalf or to sign documents for her. The children considered Mrs. Cox to be more mentally competent than her husband.


Did Mr. Cox sign an Arbitration Agreement when he was admitted a short time later?

No, by that time he was too incompetent to understand it and his step-daughter went through the admissions procedure and signed an Arbitration Agreement for him. The step-daughter testified that when she commented that reading the Admission Agreement would take a long time, the Admission Coordinator said "that's quite alright. I will explain the Admission Agreement to you." But despite the Admission Coordinator's assurances, Ms. Nelson claimed that the Admissions Coordinator never mentioned mediation or arbitration or pointed out to her that by signing the document she was waiving the right to a jury trial. Instead, Ms. Nelson claimed that the Admissions Coordinator gave one sentence explanations while quickly flipping through the document.


WHAT WAS THE COURT'S RULING? 

The Arbitration Agreement was held to be unenforceable because the WRONG PERSON signed. The resident did not sign and the court found that the evidence reflected that the resident was competent and had not given her husband expressed authority to sign the agreement on her behalf. The court found nothing in the record warranting holding that Mr. Cox had the right to waive his wife's very valuable constitutional right to a jury trial.


Other Recent Orders of the Courts ď Ž

On December 16, 2005, the Circuit Court in Lawrence County, Tennessee upheld an arbitration agreement.


The Court finds that the plaintiff knowingly entered into an arbitration agreement . . . Failed to revoke the same within ten (10) days, and is bound thereby.

The Court further finds that the agreement is not unconscionable. The Court finds that Ms. Hill had the broad authority under her power of attorney to enter into the agreement.



Other Recent Orders of the Courts ď Ž

On January 18, 2006 the Circuit Court in Davidson County, Tennessee upheld an arbitration agreement.



On the day after Mrs. Talley’s initial admission to Mariner Health, Angela Belgard, an employee of the facility met with Ms. Talley. Ms. Belgard presented Mrs. Talley with a document titled “Agreement for Arbitration.”

The agreement was 3 pages long and mentioned waiver of a judge or jury on 3 occasions.


The facts of this case indicate that Mrs. Talley may have signed the agreement without reading it.



The Plaintiff first contends that Mr. Talley is not a party to the agreement to arbitrate.










EXAMPLES FROM REAL CHARTS AS TO WHO SHOULD SIGN THE ARBITRATION AGREEMENET AND WHY?


MDS Assessment: Memory problem

Moderately Impaired

NO periods or indicators of delirium, altered perception, episodes of disorganized speech, restlessness, lethargy or change in mental function.

NO problems understanding others or making self understood.


Nurses Notes:

Alert x3

Resident answers all questions appropriately

Resident speech is clear and intelligent


ALERT – Oriented x3


Who Should sign? Only the niece signed ď Ž Given the statements made in the nurses notes and admissions documents the Resident should have signed as well. ď Ž


Common Issues What should be done when a family takes the Arbitration Agreement with them to “look it over� or have an attorney look it over, but never returns with the Arbitration Agreement?


Solution 

Flag follow-up for 1 week out!

Make sure you have a tickler system to remind you to call the family.

When you speak with the family ask them if you can answer additional questions or provide additional information.


ISSUE What should be done when a resident is blind, but competent?


SOLUTION ď Ž

Read the entire Agreement to the Resident and let them listen to the video, if possible. Then allow them to make their mark and write that you witnessed the Resident make their mark and date.


Issues Two sons admitted their competent mother and refused to sign stating that “no intention of suing, but no need to sign.�


Solution Resident signed the Arbitration Agreement and therefore since the Resident was competent it will be valid. ď Ž Additionally, it is important that the Facility understand and know why the sons would not sign the Agreement. ď Ž


Issues What should be done when there is a competent Resident who agrees to the arbitration and understands the arbitration agreement but who is physically unable to make a mark?


Solution Have the children or person who is admitting sign the Resident’s name and confirm that it is by permission.  Also have the person admitting the Resident sign.  The following is an example of the best way to handle the signature line. 



MORE REAL EXAMPLES FROM CHARTS AS TO

Who should sign the Arbitration Agreement and Why?


•Memory Problems with both long and short term memory •She is unable to recall the current season, location of room, staff names/faces, or that she is in a nursing home •Episodes of Disorganized speech •Speech is slurred and mumbled •Rarely/Never Understands •Ability is limited to making concrete requests.


Unable to orient Resident due to lack of understand ing and poor insight


Alert and oriented to person. Confusion noted during conversation

Resident is cognitively impaired and is unable to determine when assistance is needed due to cognitive impairment.


Medications include:

Haldol, Zyprexia

Unspecified schizophrenia


Targeted Behaviors: delusions auditory hallucinations visual hallucinations refusing to eat paranoia

Unspecified senile psychotic condition


Who Should sign? The Resident signed herself which is important. ď Ž Given the statements made in the nurses notes and admissions documents the Resident will likely be found to be incompetent. ď Ž The Family that admitted the Resident should have signed as well. ď Ž


REAL EXAMPLES FROM REAL CHARTS AS TO

Who should sign the Arbitration Agreement and Why?


Memory Problems with long term memory She is unable to recall the current season, location of room, staff names/faces, or that she is in a nursing home. Easily Distracted Episodes of Disorganized speech Periods of Restlessness


Nurses Notes: Alert, oriented to person and time.

Answers questions appropriately at present


Some Disorientation and Slow to respond

Disoriented x1


Physicians Orders: Dilantin Trileptal Targeted Behaviors: Paranoia, swearing delusions, combativeness, outbursts of anger, yelling loudly, nervousness Dementia


Who Should sign? The Resident signed himself which is important. ď Ž However, given the statements made in the nurses notes and admissions documents the Resident will likely be found to be incompetent. ď Ž The Family that admitted the Resident should have signed as well. ď Ž


Common Issues Suppose that you have a family that comes in with the Resident and refuses to sign the Arbitration Agreement and tells you that the Resident will not sign either.


Solution The Family does not have the right to decide unless the patient is incompetent.  Show the video to the Resident and ask them to sign the Agreement.  Answer all questions that the Family and Resident may have.  Find out why the Family does not want to sign the Agreement. 


Real Chart Examples of who should sign the Arbitration Agreement and Why?


MDS Assessment: •Short-term and Long-term Memory Problems •Cannot recall the current season, location of room. •RARELY/NEVER UNDERSTANDS


Nurses Notes: Condition Noted: Confusion

Unable to Orient resident due to cognitive deficits, daughter present and oriented.


Staff assist needed to reorient, to give reminders, to monitor activity. . . Shortterm memory impaired, long-term memory impaired. . . Decisions are rarely or never made by resident.

Rarely understands others


Resident is not able to use call bell due to cognitive deficits.


Who Should sign? This is an example of an Arbitration Agreement that was done properly.  The Resident signed himself which is important.  However, given the statements made in the nurses notes and admissions documents the Resident’s competency is questionable.  The Admissions Coordinator had the daughter sign as well, since it was questionable.  WAY TO GO!! 


MORE REAL CHART EXAMPLES OF WHO SHOULD SIGN THE ARBITRATION AGREEMENT AND WHY?


MDS Assessment:

Short-term and long-term memory problems

Modified Independence

Easily Distracted, periods of Lethargy, Resident has deteriorated over past 90 days cognitively.

Understands and is understood


No problem with communication ď Ž Able to orient to facility with no problems ď Ž


MENTAL STATE: speech is normal, alert, oriented, person, place time date situation


Alert – oriented x 3


Periods of altered awareness YES


Who Should sign?  Contradictory

notes as to whether the Resident is competent or incompetent.  Only the daughter signed, and the Resident should have signed.  ALWAYS ask the Resident to sign.


Who should sign the Arbitration Agreement and Why?


Resident admitted with some short-term memory problems

He is listed as Modified Independence.

No delirium, disordered thinking, or awareness issues

Understood and Understands


Nurses Notes:

No indication on nurses notes of any cognitive issues or problems with Resident understanding.


Appears psychologically stable on admission.

Mental State is alert and oriented.


Resident does not have any cognitive impairment that would interfere with using the call bell system.


Mental Status 1 = Oriented x 3

NURSES NOTES



Physician’s Orders: senile dementia with depressive features


Who Should sign? ď Ž The

power of attorney signed the arbitration Agreement. However, there is no record that the POA has been reviewed to determine if it is broad enough to include healthcare. ď Ž Resident appears to be competent and should have signed as well.


Who should sign the Arbitration Agreement and Why?


MDS Assessment

Some short-term memory problems

Usually Understood

Usually Understands

Modified Independence


UNDERSTOOD: is usually understood by others (has difficulty finding words . . . UNDERSTANDING: usually understands others (may miss parts or the intent of the message)


MENTAL STATE: speech is normal, alert, oriented, person place CNTs; within normal limits


COGNITION: MEMORY Resident’s memory is intact. ORIENTATION: Resident is oriented to person place and time. ALERTNESS: Resident is alert and responsive. JUDGEMENT: Resident’s judgment is intact and appropriate.


Who Should sign?

 The

wife was the only one who signed.  A court may go either way as to whether the resident was competent.  Always ask the Resident to sign.


Who should sign the Arbitration Agreement and Why?


MDS Assessment: •No indications of memory problems. •Independent

•Periods of altered perception or awareness of surroundings •Mental function varies over the day •Usually Understands


UNDERSTOOD: is understood by others, CLARITY: Speech is clear, with distinct and intelligible words. UNDERSTANDING: Usually understands others (may miss parts or the intent of the message)


MENTAL STATE: speech is normal, alert, oriented, person place


MENTAL STATUS 1 = Oriented x 3 Resident’s memory is intact.


Who Should sign? ď Ž Resident

signed which is always important. The Resident may be found to be competent. ď Ž There is no indication if there was family or friends that admitted the Resident. If there was, they should have signed.


Who should sign the Arbitration Agreement and Why?


MDS Assessment: •Short-term memory loss •Can’t recall staff faces and names •Modified Independence •Has no problem making self understood or understanding others.


COMMUNICATION: Communicates with speech, UNDERSTOOD: is understood by others, CLARITY: Speech is clear, with distinct and intelligible words. UNDERSTANDING: Understands others, COMMUNICATION PROB: no communication prob noted


MENTAL STATE: speech is normal, alert, oriented, person place time date situation


OTHER DIAGNOSIS: senile dementia with depressive features


Who Should sign?  POA

signed the Arbitration Agreement only. Since the Admissions Coordinator has not seen the POA, she doesn’t know if it is broad enough to cover healthcare.  The Chart is questionable as to whether the Resident is competent or incompetent.  The Resident should always sign.


Common Issues Residents are confused on admission because of transfer issues or their medical conditions but their status improves after they arrive.


Solution ď Ž

Flag a 30 day follow-up for all residents who are too confused to understand the Arbitration Agreement at the time of admission to offer them the opportunity to watch the video and sign the Arbitration Agreement once their condition has improved.


Common Issues What should be done when a family takes the Arbitration Agreement with them to “look it over� or have an attorney look it over, but never returns with the Arbitration Agreement?


Solution Flag a follow-up for 1 week out!  Make sure you have a tickler system to remind you to call the family.  When you speak with the family ask them if you can answer additional questions or provide additional information. 


Who should sign the Arbitration Agreement and Why?


Absolutely no indications that there are any memory problems or that there are any other mental conditions that would indicate that the resident is incompetent.


MENTAL STATE: speech is normal, alert, oriented, person, place time CMTS


AlertOriented x3


Who Should sign?  This

is a good example of what should be done.  Resident signed because there is some question as to whether the resident is competent.  The daughter signed the arbitration agreement.  The husband also signed the arbitration agreement.


Who should sign the Arbitration Agreement and Why?


MDS Assessment:

Short-term memory problem

Moderately Impaired

No indicators of delirium-periodic disordered thinking awareness No problems understanding or making self understood


MENTAL STATE: speech is normal, alert, CMTs


ALERT – oriented x 3


Physician’s Orders Secondary Diagnosis: Alzheimer’s disease


Physician’s Orders: OTHER DIAGNOSIS: dementia in conditions classified elsewhere without behavioral disturbances


Who Should sign?  This

is a good example of what should be done.  Resident signed because there is some question as to whether the resident is competent.  The daughter also signed the arbitration agreement.


Who should sign the Arbitration Agreement and Why?


Short Term Memory Problems Moderately Impaired Slurred mumbled words


Accompanied by family Speech is unclear with slurred and mumbled words.


Slow to respond – disoriented x1


Physician’s Notes: OTHER DIAGNOSIS: Senile dementia, uncomplicated


Who Should sign?  Only

the Resident signed the arbitration agreement.  The admissions papers indicate that there was family present with him on the admittance.  The Resident has very questionable competency.  The family members present on admission should have signed as well.


Who should sign the Arbitration Agreement and Why?


•MDS Assessment: •No memory problems •No indications of any cognitive problems •No problems indicated under communication


MENTAL STATE: speech is normal, alert, oriented person place time CMTs


ALERT – oriented x 3 Alert – oriented x 3


Who Should sign?  The

daughter and son-in-law signed the arbitration agreement.  The Resident did not sign the agreement and it appears from the nurses and physician’s notes that she was competent.  ALWAYS have the Resident sign.


Frequently Asked Questions & Answers ď Ž

Q. What is arbitration? Q. Do I have a right to my own attorney? Q. Who are the arbitrators? Q. Who selects the arbitrators?

ď Ž

A. All of these questions may be answered by responding that arbitration is an alternative form of handling disputes. It only changes the forum in which your dispute will be heard (an arbitration panel or a jury). You would select your own attorney and the facility would select its attorney. The two sides each select an arbitrator and, together, select a third neutral arbitrator. These three serve as the arbitration panel.


Frequently Asked Questions & Answers ď Ž

Q. Can I still sue the nursing home? A. Yes. Signing the arbitration agreement only changes the forum in which your dispute will be heard (an arbitration panel or a jury).

ď Ž

Q.Does signing the arbitration agreement take away my right to a jury trial? A. Yes. You and the nursing home are agreeing to waive the right to a jury trial and agree to replace the jury trial with arbitration.


Frequently Asked Questions & Answers ď Ž ď Ž ď Ž

Q. Will the nursing facility allow me to be admitted if I do not sign the arbitration agreement? A. Yes. It is optional. Q. May I take the arbitration agreement home to review it before I sign? A. Yes. We prefer that you complete all paperwork before being admitted to the facility. You will be given a copy of the agreement to take home. The agreement contains a clause that allows you to cancel it within 30 days from the signature date.


Frequently Asked Questions & Answers  

Q. Can I change my mind? A. Yes, anytime within 30 days of signing the agreement. If a resident or family member asks to revoke the arbitration agreement then you should retrieve the original agreement from the administrative file and ask the person revoking to cross through his or her signature and write “revoked” beside it and date.


Frequently Asked Questions & Answers ď Ž

Q. May I have a copy of the laws referred to in the arbitration agreement?

ď Ž

A. Copies of the laws referenced in the arbitration agreement may be obtained from the public library. They are also on the Internet. Our office does not keep copies of laws but we are happy to help you find a copy if you would like to see them.


Frequently Asked Questions & Answers ď Ž

Q. Is arbitration only used by Nursing Homes?

ď Ž

A. No. Arbitration has been utilized since the 1930's in a variety of industries, including business, real estate, entertainment, and health insurance companies. Arbitration is also used for disputes between employees and employers.


Frequently Asked Questions & Answers Q:Will the arbitrator act fairly? A: It is fundamental that an arbitrator act fairly. The Arbitration Act requires the arbitrator to be impartial and independent, and adhere to the rules of justice during the procedure and in making the award. The chief rules are:  to act fairly, in good faith, without bias, and in a judicial temper;  to give each party the opportunity of adequately stating their case, and correcting any relevant statement prejudicial to their case, and to not hear one side behind the back of the other;  to not be a judge in one's own cause (so that an arbitrator must declare any interest in the dispute);  to disclose to the parties any relevant documents which are looked at (by the arbitrator).


Frequently Asked Questions & Answers Q. Do I need an attorney? A. Individuals can choose to use an attorney or represent themselves at arbitration. Only corporations have to be represented by an attorney. Q. When does the arbitrator make his or her decision? A. The arbitrator may announce his or her decision, called an award, at the end of the arbitration hearing. Sometimes, the arbitrator will wait and issue the award after he or she has had more time to think about the case. However, the arbitrator must issue a written award and file it with the court. You or your attorney will be sent a copy of the award. The award may or may not explain the arbitrator’s reasoning.


Frequently Asked Questions & Answers   

 

Q. Who should sign the arbitration agreement? A. Always ask the resident if the resident is able Always ask the spouse if the spouse is alive Always ask the responsible party Ask children, siblings, or parents who are involved in the admissions process


HOW ARE WE GOING TO KEEP TRACK OF OUR SUCCESS: OUR ABITRATION LOG


HOW CAN YOU RECALL WHAT YOU DID WHEN YOU ARE CALLED TO TESTIFY?

Do it the same way every time – get your rhythm  Consider using the following checklist: 





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