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24 Sep
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Arbitration Has Come to Senior Living. You Don’t Have to Sign Up.

What the Jinks family wanted was to sue the memory care facility where their father, Charles, was attacked by another resident.

It happened in October 2020, after Hurricane Laura forced his hasty evacuation from a similar facility in Louisiana. His three children moved him, at 80 years old and diagnosed with dementia, into Brookdale Dowlen Oaks in Beaumont, Texas. They installed a Ring camera in his room so they could keep an eye on him.

That camera showed another resident entering his room while he slept one night and battering Mr. Jinks with the heavy lid of a toilet tank, sending him to an emergency room with fractured facial bones and lacerations. It took 11 staples to close the biggest wound.

After Mr. Jinks recuperated and the family recovered from its shock, they consulted a lawyer. “We wanted Brookdale to be accountable for this,” said his daughter Charlene Jinks Young, 61. “I wanted 12 people” — a jury — “to hear this story.”

But before a court could hear their lawsuit accusing the company of gross negligence, the family had to get past an arbitration clause in Brookdale’s residency agreement. Ms. Young, using her father’s power of attorney, had signed it the day the family moved him in.

It stipulated that in the event of disputes, residents must submit to binding arbitration. A lawyer, not a judge or jury, would rule on their claims, with the parties required to split the proceeding’s costs.

Arbitration clauses appear frequently, often little noticed, in contracts with businesses of many kinds: banks and financial firms, cellular companies, online marketers. The clauses are also “widespread in long-term care facilities, in nursing homes, assisted living, board and care homes,” said Lori Smetanka, executive director of the National Consumer Voice for Quality Long-Term Care.

Brookdale Senior Living — the nation’s largest long-term care company, with 674 facilities in 41 states — would not comment on the Jinks case but said in email that arbitration “allows parties to resolve a dispute in a more expeditious and cost-efficient manner than litigating in court.”

But advocates for residents, families and consumers have opposed mandatory arbitration for decades. Sometimes, parties trying to settle a dispute both agree to seek arbitration, but compulsory arbitration “binds the resident upfront,” Ms. Smetanka said. “Essentially, you’re saying, ‘No matter what happens, I waive my right to a court decision.’”

Eric Carlson, directing attorney of the legal advocacy group Justice in Aging, said, “Arbitrators in general are less sympathetic to residents than a jury might be. The nursing home is probably doing business with these arbitrators over and over. They have an incentive to favor the nursing home.”

A Stanford Business School study of arbitration in the securities industry, for instance, found that companies — which use arbitration far more often than individuals — learned which arbitrators would favor their positions and kept selecting them. (Some agreements specify an arbitration firm; others allow each party to veto a certain number of arbitrators from a common list.)

Binding arbitration also avoids the public attention a lawsuit and trial could bring; some agreements require strict confidentiality. The Brookdale agreement Ms. Young signed, for example, said the parties agreed not to discuss any settlement, the parties’ names or the facility’s name and location.

“It’s a private system with a gag rule, in effect,” Mr. Carlson said. “It’s in society’s interest that these cases not be secret. It’s important public knowledge if something horrific happens in an assisted living facility.”

When residents or their representatives sign these agreements, which are part of admission packets that can include dozens of pages, they may not realize they’ve waived their court rights or understand what arbitration entails.

Residents and their families are dealing with paperwork at what is often a stressful time, after a hospitalization or health crisis, with limited opportunity to scrutinize documents or consult a lawyer.

When Ms. Young signed her father’s agreement, her sister and brother-in-law were moving their father into his room. “It was very rushed,” she said. “I probably wasn’t in that office for 15 minutes.”

Nobody explained the 13-page residency agreement in detail, she said. Cody Dishon, the lawyer whom the Jinks family later retained, had to explain that her signature could preclude a court date.

“I can’t imagine any other constitutional right you can sign over without even knowing it’s happening,” Mr. Dishon said in an interview. “But courts are allowing consumers, without attorneys, to do this.”

Since 2019, Medicare regulations have prevented nursing homes from requiring arbitration for admission or residence. Yet “they’re still being included in admissions packets, and family members or residents are still being told, ‘Sign the papers,’” Ms. Smetanka said.

If they do sign, residents have 30 days in which to rescind their agreement to arbitration.

But assisted living, including memory care, is not federally regulated, so those rules don’t apply.

In July, when Mr. Dishon filed a gross negligence suit against Brookdale on behalf of the Jinks family, the company responded with a motion to compel arbitration.

Mr. Dishon filed an objection, arguing that the arbitration provision was “unconscionable” and estimating that Mr. Jinks’s half of the expenses could reach $20,000 to $50,000.

A district court judge, unpersuaded, ruled last month that the arbitration should proceed.

He allowed a separate suit to go forward, however, based on Brookdale’s “involuntary transfer” of Mr. Jinks, whom the facility discharged shortly after the attack, claiming his behavior was problematic.

His three children, who aren’t bound by the arbitration agreement, are also suing for “loss of consortium” — deprivation of the family relationship because of their father’s injuries.

In challenging arbitration agreements, “sometimes residents win, and sometimes they lose,” said Mr. Carlson, who annually reviews such litigation. “It depends on the facts, and it depends on the court.”

In 2016, a federal court in Kentucky ordered arbitration after a resident died in a nursing home and his wife sued for negligence and wrongful death.

But in 2020, a California court refused to compel arbitration when a daughter sued a residential care facility for elder abuse and wrongful death after her father’s death. An appeals court affirmed the decision.

Both the National Consumer Voice and Justice in Aging urge residents and their representatives to simply strike out arbitration clauses when signing the initial paperwork.

In nursing homes, arbitration clauses are not required. Assisted living companies may require them but may not be willing to push the matter, Mr. Carlson said, especially if there are multiple competitors nearby.

“You’re not negotiating with the general counsel,” he said. “You’re just talking with an administrative clerk doing his or her job, who needs your business. It’s a problem if you walk away.”

In fact, asked if a resident could strike an arbitration clause, Brookdale responded in an email that “whether an individual strikes an arbitration clause is not a deciding factor in determining whether Brookdale can meet that individual’s needs.”

The American Health Care Association and National Center for Assisted Living, an industry group, said that disputes requiring formal resolution arise for fewer than 1 percent of residents.

“We support the right of residents and families to pursue legal remedies for poor and inadequate care, but we should not promote a system that attempts to bankrupt a critical aspect of our health care system,” the group said in an emailed statement.

Mr. Dishon hopes public pressure will lead Congress to ban arbitration requirements for long-term care, as it did earlier this year in sexual harassment cases. “I believe the public has a right to know what happened to Mr. Jinks,” he said.

Mr. Jinks now lives in a memory care center in Lake Charles, La. His children, who visit several times a week, are pleased with his care. But, Ms. Young said, “We still have a camera in his room.”

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