McKnight’s had an article recently discussing the nursing home industry requiring residents to waive their constitutional right to a jury trial to recenive taxpayer funded long term health care. Arbitration should not be required as a condition of admission. CMS prevents nursing homes from requiring such agreements in order for residents to start or continue receiving care per CMS rules.
However, in Parker vs. Symphony of Evanston Healthcare, the Illinois Appellate Court for the First District ruled the skilled nursing provider couldn’t compel a resident’s daughter to arbitrate her negligence claims because the daughter held only a healthcare power of attorney. In Illinois, a judge said, a family member with a healthcare proxy can enter an arbitration agreement only if that agreement is a condition for receiving care. Which would violate federal law.
The facilities should require a durable power of attorney with express authority or permission from the principal to the agent stating that the principal wants to waive their constitutional right to a jury trial.
Here are recent Decisions from South Carolina Court of Appeals on arbitration.