When a family moves a loved one into a nursing home, they sign a stack of paperwork on one of the hardest days they have had, often without a lawyer and without much time to read. Buried in that stack is frequently an arbitration agreement, which says that any future dispute goes to a private arbitrator instead of a jury. Families usually do not notice it, and facilities count on that. Later, when something goes wrong and the family wants their day in court, the facility points to the agreement and moves to send the case to arbitration.
Here is what many families do not know: signing that agreement is not the end of the road, and because I have worked the defense side of these cases I know how a facility and its insurer will try to use it to keep your case out of court. Whether one holds up depends on what it said, who signed it, and how it was presented, and I read these agreements closely against the Florida decisions that govern them. I represent families, not facilities, and I came up in the courtroom as a public defender, trying numerous cases and cross-examining witnesses constantly. I am willing to fight to keep your case in front of a jury, which is often what moves a facility’s insurer to pay fair value, and I handle it personally from the first call through trial. Learn more about my background.
Why nursing homes want arbitration
Arbitration favors the facility, which is why it is in the paperwork. It moves the case out of open court and away from a jury, it is generally quieter and less public, and older versions of these agreements often tried to cap or limit what a resident could recover. Some went further and tried to shorten deadlines, limit punitive damages, or force the resident to use a particular set of private rules. Those overreaching terms are exactly where Florida courts have pushed back.
When Florida courts refuse to enforce them
An arbitration agreement is a contract, and like any contract it can be challenged. The strongest challenge in Florida is that the agreement strips away the rights and remedies the law guarantees nursing home residents. The Florida Supreme Court has held that an agreement limiting a resident’s statutory remedies violates public policy and is unenforceable, and it has held that this kind of agreement cannot always be saved by pointing to a clause that says the rest survives if one part fails. Agreements can also be challenged as unconscionable, which looks at both the unfairness of how the agreement was presented and the one-sidedness of its terms. When a facility handed a stressed family a dense form to sign at admission, that context is part of the argument.
Who signed it, and whether it binds you
Before the terms even matter, there is the question of whether the agreement is valid at all. If the resident signed while lacking the capacity to understand it, that is a problem for the facility. If a family member signed, the question becomes whether that person actually held the legal authority to bind the resident, because a signature without authority does not create a binding agreement. And when the claim is a wrongful death case brought by survivors, whether the decedent’s agreement reaches those survivors is a fact-specific question that Florida courts have answered in different ways. Each of these is a real avenue, and each turns on documents worth examining early.
What we do when a facility moves to compel arbitration
When a facility tries to force a case into arbitration, the work is careful and document-driven. It means reading the agreement line by line for terms that limit statutory remedies, examining the admission paperwork and the circumstances in which it was signed, checking who signed and under what authority, and measuring the agreement against the Florida decisions that have refused to enforce ones like it. Sometimes the right move is to fight the agreement and keep the case in front of a jury. The honest answer is that some agreements are enforced and some are not, which is why the specific document matters so much, and why it is worth having someone read it before you assume your options are closed.
Common Questions
Does signing an arbitration agreement mean I cannot sue the nursing home?
Not automatically. It may mean the dispute is decided by a private arbitrator instead of a jury, but Florida courts have refused to enforce agreements that go too far, and there are questions about who signed, what it said, and whether it is valid. Signing one is a reason to have a lawyer look at it, not a reason to give up.
Can a nursing home arbitration agreement be thrown out?
Sometimes. Florida courts have refused to enforce agreements that strip away the rights and remedies the law gives residents, and the Florida Supreme Court has held that this kind of agreement cannot always be rescued by fixing one clause. Agreements can also be challenged as unconscionable when they were presented unfairly. It depends on the specific document and how it was signed.
My parent had dementia when they signed. Does that matter?
It can matter a great deal. If the resident lacked the capacity to understand what they were signing, or if the person who signed did not actually have legal authority to bind the resident, the agreement may not hold. Who signed and under what authority is one of the first things worth examining.
I signed the paperwork as the family member. Am I stuck with it?
It depends on your authority to sign and on what claims are involved. Whether an agreement binds family members, including in a wrongful death claim brought by survivors, is a fact-specific question that Florida courts have addressed in different ways, so it is worth reviewing rather than assuming.
Should I sign an arbitration agreement when admitting a loved one?
Often it is not required. Federal rules bar Medicare and Medicaid facilities from making a resident sign a pre-dispute arbitration agreement as a condition of admission. This page is general information, so ask before you sign, and know that agreeing to arbitration is usually a choice, not a requirement.
Related: Nursing home abuse and neglect, Wrongful death in a nursing home, How these cases are proven, Florida nursing home residents’ rights.
This page is general information about Florida law, not legal advice, and it does not create an attorney-client relationship. Arbitration of these disputes is governed by the Federal Arbitration Act and the Florida Arbitration Code in Chapter 682 of the Florida Statutes, the resident’s rights and cause of action appear in sections 400.022 and 400.023, and the federal limits on requiring arbitration as a condition of admission appear in 42 C.F.R. 483.70. Whether any particular agreement is enforceable depends on its terms and the circumstances in which it was signed. Every case is different, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely on advertisements.
