1.      The individual signing the arbitration agreement must have the legal capacity to sign the agreement.  Frequently, a general power of attorney is required, not just a health care power of attorney.  Having an employee specifically discuss the arbitration agreement with the resident and their family is a wise policy.  There should be a specific sentence in the agreement that should be signed by the individuals involved acknowledging that they discussed the agreement and agreed upon the arbitration provision.  Also, it would help to indicate that the parties exchanged specific consideration (something of value is given to the party waiving their right to a jury trial) for the agreement to waive this right.

2.      The arbitration agreement should not be "buried" among boilerplate language in the contract.  It should be labeled and set off in its own paragraph, ideally as a separate attachment.

3.      Admission to the facility should not be made contingent upon signing the arbitration agreement.  This must be stated in the contract.  This is one way to help dispel the notion that the contract was entered into under circumstances of "duress".

4.      There should be a limited opt-out provision, permitting the resident the ability to revoke the agreement within a certain number of days.

5.      Neither the admission agreement nor the arbitration agreement should contain limitations or caps on emotional, consequential, or punitive damages as multiple courts have invalidated arbitration agreements because of such language.

6.      Arbitration provisions should contain the basic elements of a contract (offer, acceptance and consideration), and be labeled and identified in a conspicuous manner (as opposed to appearing in the middle of contract provisions, or as in a boilerplate).  Also, the language should be in boldface letters and titles and all capitalized letters.

A well-crafted and properly presented binding arbitration agreement can be a very beneficial document for all parties involved.  Both the resident and the nursing home experience a relatively quick, equitable, and fair resolution of an issue without the poorly controlled expenses of litigation.  However, poorly crafted and presented, an agreement to arbitrate is not worth the paper that is written upon.  This must be a contractual agreement that is entered into by all involved parties willingly and with full knowledge of the implications and restrictions that the agreement imposes upon them.  An arbitration agreement carefully crafted by a healthcare attorney can be invaluable to a nursing home in dispute resolution.

If you have questions regarding this article, please contact Gerald V. Burke, MD.,Esq. at gburke@barmak.com or by telephone at (609) 454-5351.

Consider the following excerpt from an article written by Daniel Redman for Aging Today, the bimonthly newspaper of the American Society on Aging at http://www.asaging.org/blog/fear-discrimination-and-abuse-transgender-elders-and-perils-long-term-care:

Phyllis Frye is a long-time lawyer and a judge in Houston. She is also a prominent transgender activist. To transition from male to female-her true gender identity-she underwent several medical procedures and takes estrogen. In Phyllis's life, she chooses where and how she lives without fear. Looking to her future, she is adamant she would not feel safe living in a nursing home.

Transgender elders are afraid of long-term-care facilities. As Frye puts it, "A secret fear of all transgender people, surgical or not, is to grow old and be psychologically abused, day after day, by the staff of a nursing home." Transgender elders are afraid staff members will refuse to let them live consistent with their gender identity, deny them appropriate medical care (such as hormone therapy), violate their privacy and leave them vulnerable to harassment and mistreatment.

Most elderly people are reluctant and fearful about moving to a nursing home and losing their independence and dignity.  For a transgender elderly person, that fear is compounded by the fear that they will be denied their hormone therapy and forced to live in their original sex.  They are also afraid that they will be ridiculed or harassed by both staff and residents, receive less than adequate care, including physician administered medical care, or that they will be forced to "hide" their true sexual identity. 

A long term care provider should put in place the following measures to help insure that transgender residents feel welcome and respected:

1.      Develop a nondiscrimination policy that specifically guards against discrimination based on gender identity and sexual orientation;

2.      Provide LGBT (Lesbian, Gay, Bi & Transgender) training to all CNA's and other personnel such as is mandated by law in California and twelve other states;

3.      Make sure that common areas contain literature and other items of interest dealing with issues affecting LGBT persons such as a rainbow flag and pamphlets addressing issues facing the aging LGBT community.

4.      Create or designate unisex or single-stall restrooms;

5.      Provide self-help/support groups for LGBT residents.  Provide opportunity for the group to express concerns regarding LGBT issues or stigma within the facility.

6.      Ensure that visitation policies are implemented in a fair, nondiscriminatory manner;

7.      Use neutral and inclusive language in interviews and when talking with all residents.  Ask the resident what pronoun they prefer;

8.      Listen to and reflect residents' choice of language when describing their own sexual orientation and how the resident refers to his/her relationship or partner;

9.      Provide information and guidance on specific health concerns affecting LGBT persons;

10.   Stay current and knowledgeable on issues affecting LGBT persons and available resources.

If you have any questions regarding this article, please contact Jo Ann Halberstadter, Esq. at jhalberstadter@barmak.com or call (609)-454-5351.