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

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ARBITRATION AGREEMENTS AND THE ADMISSIONS PROCESS

Presented by Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.


Three Goals for Training 1. To understand what Arbitration is, what it “looks� like, and how our new Arbitration Agreement works. 2. To understand why Arbitration is beneficial to everyone involved. 3. To be confident when you present the Arbitration Agreement on your next Admission at your community.


Role of Admissions Staff

What are the roles of the Admissions Coordinator and why are you so important to this process?


Role of Admissions Staff In many situations, 1) You are the first interaction that a family has with the community. 2) You set the stage of how the family is going to see the community for the first time. 3) Courts and judges look to you to see how you presented the Arbitration Agreement.


Quiz Give some serious thought and consideration to the questions and answer them as simply as you can.


Goal 1 - To understand what Arbitration is, what it “looks� like, and how it works. What is Arbitration?


What is Arbitration? It is an alternative to a jury trial where the parties to a dispute agree to submit their dispute 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


Selection of the Arbitrator • How do you select an arbitrator? • Who are arbitrators?


Setting a Hearing Date • How do you set the hearing dates and what if the parties don’t agree?


Setting a Hearing Date The parties and arbitrator choose a mutually convenient day and time for the hearing.


Presentation of the Case • What happens during the arbitration? • Do you have witnesses? • How long does it take?


Presentation of the Case Arbitration hearings are conducted somewhat like court trials, except that arbitrations are less formal. Arbitrators are not required to follow strict rules of evidence.


Presentation of the Case This includes three main things: • An opening statement • Witness testimony and crossexaminations • A closing statement


The Award • How long does the decision and award happen in an Arbitration? – Under your Arbitration Agreement, within 10 days of the conclusion of the hearing. • Is there a right to appeal? – No, not unless there is fraud. • Is the award limited to a certain amount of money? – No.


The Award • The award is the decision of the arbitrator. The purpose of the award is to dispose of the controversy finally and conclusively.



GOAL 2 -To understand why Arbitration is beneficial to everyone involved.

What are the Benefits of Arbitration?


What are the Benefits of Arbitration? • Privacy - An arbitration hearing is a private meeting the media and members of the public are not able to attend. The final decision is confidential.


What are the Benefits of Arbitration? • Informality – Arbitration is far less formal than at court trial. As a consequence, it helps with good working relationships.


What are the Benefits of Arbitration? • 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. Under your Arbitration Agreement, the goal of the parties is to complete the entire process in 180 days. The process of a jury trial and appeal can take years.


What are the Benefits of Arbitration? • Finality - There is generally no right of appeal, unless there is fraud.


What are the Benefits of Arbitration? • Choice of decision maker - For example, the parties can choose a person who understands long-term care as arbitrator, so they will better understand the evidence.


What are the Benefits of Arbitration? • Flexibility – The parties can control the pace, hours, location and many details because they don’t have to stay on a jury/court schedule.


What are the Benefits of Arbitration? • Convenience - The hearings are arranged at times and places to suit the parties, witnesses, and arbitrator.


Arbitration for NH Client • Both sides agreed on an Arbitrator. • Both sides had the same amount of time to present their case. • Both sides were allowed to call witnesses when it was convenient for the witnesses to appear. • Both sides took breaks when they needed. • It was business casual dress. • The overall costs were cut in half.


GOAL 3 -To be confident when you present the Arbitration Agreement on your next admission. How do I present the Arbitration Agreement and what do I need to know about our new Arbitration Agreement?


The New Arbitration Agreement



Our New Arbitration Agreement Discussion of Each Paragraph


Discussion of Paragraph 1

• Waiver of a jury trial • Binding arbitration • Optional • Resident refers to everyone signing for the Resident • Community includes everyone working with or for the Community


Discussion of Paragraph 1


Discussion of Paragraph 2

• All disputes between the parties over $25,000 will be arbitrated • Governed by the FAA


Discussion of Paragraph 2


Discussion of Paragraph 2


Discussion of Paragraph 2

• How to initiate an arbitration • Written “demand” via certified mail • Method of choosing arbitration agreement to go to mediation within 120 days


Discussion of Paragraph 2

• Location of arbitration • Present testimony • Covered by state Rules of Civil Procedure and Evidence • Limit discovery to only that necessary for a fair hearing


Discussion of Paragraph 2

• Goal to be completely resolved in 180 days after mediation • Mediator decision within 10 days after hearing • Judgment paid in 30 days • Confidential


Discussion of Paragraph 2

• Nonappealable • Community will pay for five 5 days of hearing then fees will be divided equally • Agreement can be revoked within 30 days • Is binding for all other admissions to Community


Discussion of Paragraph 2


Discussion of Paragraph 2

• Has watched DVD explaining arbitration • Has received or been provided a copy of Arbitration Agreement • Understands waiving the right to a jury trial


Discussion of the Signature Block


Discussion of Paragraph 2


Discussion of the Signature Block – Who Should Sign? • The Resident should ALWAYS sign (if able). • If there is a POA or other legal representative, you should to contact them and have them sign. • The Surrogate should ALWAYS sign. • The spouse should always sign. • Anyone participating in the admission process should sign. • You as the community representative should sign.


Frequently Asked Questions & Answers • Q. What is arbitration? Q. Do I have a right to my own attorney? Q. Who are the arbitrators? Q. Who selects the arbitrators? • 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 arbitrator instead of a jury). You would select your own attorney and the community would select its attorney. The two sides try to agree on one arbitrator. If they cannot, the Court appoints a neutral arbitrator.


Frequently Asked Questions & Answers • Q. Can I still sue the community? • A. Yes. Signing the Arbitration Agreement only changes the forum in which your dispute will be heard (an arbitrator instead of a jury).

• Q. Does signing the Arbitration Agreement take away my right to a jury trial? • A. Yes. You and the community are agreeing to waive the right to a jury trial and agree to replace the jury trial with arbitration.


Frequently Asked Questions & Answers • Q. Will the nursing community allow me to be admitted if I do not sign the Arbitration Agreement? • A. Yes.


Frequently Asked Questions & Answers • Q. Can I change my mind? • A. Yes, anytime within 30 days of signing the agreement. The signatory simply sends written notice, certified mail, return receipt requested to the Community Administrator.


Frequently Asked Questions & Answers • Q. Is arbitration only used by Long Term Care Communities? • A. No. Arbitration has been utilized since the 1930s 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. 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. but just as if they were going to court, they will most likely choose to hire 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. You or your attorney will be sent a copy of the award. The award will contain a detailed explanation of the ruling and must be issued within 10 days of the conclusion of the hearing.


Frequently Asked Questions & Answers • Q. Who should sign the Arbitration Agreement? • A. Always ask the resident if the resident is able • Always ask the Power of Attorney • Always ask the surrogate • 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


What tools do you have to help you feel confident when presenting the Arbitration Agreement? Arbitration Checklist


Tools You Can Use When Presenting the Arbitration Agreement?

Arbitration Checklist


Checklist will be inserted here


How can you recall what you did when presenting the arbitration agreement? • Do it the same way every time – get your rhythm. • Use your Arbitration Checklist as the guide. • Make notes on the Arbitration Checklist. • Follow up with Residents who may not be in the community or may be disoriented on admission. • Follow up with POA, DPOA, conservators, etc. who are not present on admission.


What to expect when presenting the Arbitration Agreement The top three problems that we have seen and how to deal with difficult families and residents.


Family Member has signed and the Resident has just arrived • What if the Family Member that admitted the Resident signed the Arbitration Agreement? Do I need to have anyone else sign? • What if the Resident does not appear to be competent? Should I have the Resident sign anyway? • How am I suppose to know if the Resident is mentally capable of signing the Arbitration Agreement? • Do I need to review the charts and make a determination on competency and capacity to sign?


Family Member has signed and the Resident has just arrived • Even if you have the Family Member sign the Arbitration Agreement, you should still follow up with the Resident when they arrive and have him/her sign as well. • We do not want you making a judgment call on whether a Resident is capable of signing the Arbitration Agreement. So, err on the side of giving the Resident the opportunity to sign the Arbitration Agreement. Use common sense. • If the Resident appears to be incompetent or confused, flag a follow up for the following week when things may be less hectic for the Resident. • Make notes on your Arbitration Checklist about who has signed and how the Resident was behaving.


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? • 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.


LET’S PRACTICE


Lessons Learned from Other Facilities


Good job on Checklist


Competency looks good other than in new situations


Competency looks good here too


Good job on Arbitration Agreement


I cannot tell from this if Nancy Vickers was asked to sign or not.


Was Resident asked about this decision? If so, she should have signed or note that she did not understand.


This makes it look like she had enough capacity to sign.


This shows capacity as well



This should say “Bonnie Williams by Cassie Davis”


The resident looks competent


This also makes the resident seem competent


This makes resident appear competent


Good job getting resident to sign Arbitration Agreement


Nice job on checklist


Appears competent


Resident appears to have capacity here


Resident appears to have capacity here as well


Good job getting resident to sign


Good job on checklist


Resident looks Competent here


Resident looks competent here


Resident looks pretty good here


Good job on getting Arbitration Agreement signed


POA is effective “if, and only if, I am incapacitated”


Resident looks competent


Very nice job getting resident and family member to sign


-- Checklist needs to show who offered it to the resident and when. -- The names of the children need to be filled in. -- I see no POA in favor of daughter.


Resident appears competent


Resident appears competent


Nice job getting resident and family member to sign


Add parties names in blanks


Cognition appears impaired


Nice job getting resident and family member to sign


Nice work on checklist. Add names.


Resident appears competent


Good job getting Arbitration Agreement signed


Nice job on checklist. Add names.


Questionable competency


Nice work getting two signatures


Cognition impaired


Nice job getting Arbitration Agreement signed


MDS indicates capacity


MDS indicates capacity


Resident appears competent


Nice job getting POA to sign. Where is POA document?


Nice notes on Checklist


Capacity questionable


Capacity looks good


Capacity does not look good here


Nice job getting resident and family to sign


Nice notes on Checklist


Capacity looks great


Capacity does not look good here


Don’t forget initials


Fill in who all it was offered to

Initial each section


Capacity looks good here


Capacity looks good here


Capacity questionable here


Quiz 1. What is Arbitration? 2. How do you select an Arbitrator? 3. Once the Arbitrator is selected, how does Arbitration work? 4. Can a Resident’s family/friend appeal the Arbitration/ What does that mean? 5. Is there a limit to the amount of money that the Resident’s family/friend can recover in Arbitration? 6. Name all the different people that should sign the Arbitration Agreement. 7. What is the benefit of Arbitration versus trial?


Questions


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