Nursing Home Arbitration Agreements in Florida

A Florida nursing home arbitration agreement is a contract, usually tucked into the admission packet, that sends any future injury or neglect claim to a private arbitrator instead of a courtroom and jury. Signing one is not required to be admitted, and many of these agreements can be challenged. Whether yours holds up depends on who signed it, what it says, and when it was signed.

Key Takeaways

• Under the federal rule that covers Medicare and Medicaid nursing homes, signing an arbitration agreement must be voluntary and cannot be a condition of admission or of continued care.
• A resident or representative can rescind the agreement within 30 calendar days of signing, and the agreement must say so.
• Florida law protects residents’ statutory remedies, and courts look closely at who actually signed and what authority that person had.

What is a nursing home arbitration agreement?

Arbitration is a private process where one or more arbitrators, not a judge and jury, decide a dispute. Nursing homes include arbitration clauses in admission paperwork to keep claims for neglect, abuse, falls, bedsores, and wrongful death out of public court. The clause may be a separate document or a few paragraphs inside a long admission contract that a stressed family signs on the day of a hospital discharge.

The choice matters. Arbitration typically means no jury, limited discovery, and very little right to appeal. Families often sign without realizing they have given up their right to sue, which is why the rules about voluntariness and notice exist. For a broader picture of resident harm and the claims that follow, see our guide on nursing home abuse and neglect: signs and legal options for families.

Can a Florida nursing home require you to sign one?

For facilities that take Medicare or Medicaid, no. The federal long-term care rule at 42 CFR 483.70(m), as revised by the CMS final rule published at 84 Fed. Reg. 34718 (July 18, 2019), allows arbitration agreements only on these conditions:

• The facility must not require signing as a condition of admission or of continuing to receive care, and it must tell the resident that he or she has a right to refuse.
• The facility must explain the agreement in a form and language the resident or representative understands and obtain an acknowledgment that they understood it.
• The agreement must provide for a neutral arbitrator agreed on by both sides and a venue convenient to the resident.
• The agreement must give a 30 calendar-day right to rescind and must state that signing is not a condition of admission or care.
• The agreement cannot discourage the resident from talking to federal, state, or local officials, including surveyors and the long-term care ombudsman.
• The facility must keep the signed agreement and the arbitrator’s final decision for five years after the dispute is resolved.

The earlier 2016 CMS rule would have banned these agreements before a dispute arose. That ban was blocked in court and replaced by the 2019 rule above. We have not found a later federal rule that restores the ban, but rules in this area can change, so confirm the current text before you rely on it.

Does Florida law protect a resident’s right to sue?

Yes, to a large degree. Florida created a statutory cause of action for nursing home residents in section 400.023, which allows a claim for actual and punitive damages against the licensee and certain others responsible for the resident’s care. Punitive damages are available only if the claimant meets the heightened showing in section 400.0237. The residents’ rights themselves are listed in section 400.022, including freedom from abuse and neglect.

The Florida Supreme Court held in Shotts v. OP Winter Haven, Inc. (Nov. 23, 2011) that limitation-of-remedies provisions in a nursing home arbitration agreement were void as against public policy because they undermined the remedies the Legislature created in sections 400.022 and 400.023. The Court also held that the offending provision could not be severed despite a severability clause. So an agreement that, for example, bars punitive damages or imposes the rules of a particular arbitration association may be unenforceable.

That does not mean every agreement fails. A clean, voluntary agreement can still be enforced, and the Federal Arbitration Act limits how far states can go. The U.S. Supreme Court held in Marmet Health Care Center, Inc. v. Brown (2012) that a state cannot ban pre-dispute arbitration in nursing home cases as a category, and in Kindred Nursing Centers L.P. v. Clark (2017) that a state cannot single out arbitration with a special clear-statement rule for powers of attorney. Ordinary contract defenses such as lack of authority, fraud, and unconscionability still apply.

Who has the authority to sign for a resident?

This is often the strongest issue. Many admissions are signed by a spouse, a son, or a daughter, not the resident. Whether that signature binds the resident depends on the signer’s authority, such as a valid power of attorney or health care surrogate role covering the decision, and on the capacity of the resident to sign personally.

The Second District Court of Appeal addressed a common version of this problem in Sovereign Healthcare of Tampa, LLC v. Estate of Yarawsky (Fla. 2d DCA Nov. 7, 2014). The resident’s wife had signed only as the “responsible party,” a role tied to payment, and no one signed as the resident’s legal representative. The court affirmed an order undoing the earlier order that had compelled arbitration. The lesson is that how a person signs, and whether they had real authority, can decide the case.

The reverse is also true. The Florida Supreme Court held in Laizure v. Avante at Leesburg, Inc. that when a resident who had the capacity to contract personally signs an arbitration agreement, it can bind the estate and the statutory wrongful-death beneficiaries in a later wrongful death claim that falls within the agreement. So a family cannot assume that a death case automatically goes to court. For how death claims work generally, read our post on how to file a wrongful death lawsuit.

What happens if the nursing home asks a court to compel arbitration?

If you sue, the facility will often file a motion to compel arbitration. Under section 682.03 of the Florida Arbitration Code, when the motion is contested the court decides it summarily and must order arbitration unless it finds there is no enforceable agreement to arbitrate. The court cannot refuse just because it thinks the underlying claim is weak. Under section 682.20, an order refusing to compel arbitration can be appealed, which is one reason these fights can add months to a case.

Florida also has a presuit process for nursing home claims. Under section 400.0233, a claimant gives notice to each prospective defendant, an evaluation period follows, and the statute of limitations is tolled during that period. Time limits for injury claims are strict, and the one that applies to your situation depends on the type of claim. Our overview of the Florida personal injury statute of limitations is a starting point, but do not rely on a general guide for a deadline in your own case.

What should you do if you already signed one?

• Find your copy. Ask the facility for the complete admission packet, including every signature page. Keep it with the date you signed.
• Check the 30-day window. If you are within 30 calendar days of signing, you may be able to rescind in writing. Send it in a way that gives you proof of delivery.
• Note who signed and how. Write down the name of the signer, the capacity written beside the signature, and the resident’s condition on that day.
• Do not ignore a motion to compel. Deadlines to respond are short.
• Report safety concerns. The Florida Long-Term Care Ombudsman Program takes complaints at 1-888-831-0404, and the Agency for Health Care Administration takes them at (888) 419-3456. See the ombudsman complaint page and the AHCA complaint FAQ. A complaint to either office does not affect the arbitration question.

Frequently Asked Questions

Can a nursing home refuse to admit my parent if I will not sign?

Federal rules for Medicare and Medicaid facilities say the agreement cannot be a condition of admission or continued stay, and the facility must tell you that you have the right to refuse. If you were told otherwise, tell us, because that may affect enforceability.

Can I cancel an arbitration agreement after I signed it?

The federal rule requires the agreement to give a 30 calendar-day right to rescind. After that window, you may still challenge the agreement on other grounds, such as lack of authority to sign or an unenforceable term.

Does arbitration apply to a wrongful death claim?

It can. Under Laizure, an agreement signed by a resident with capacity can bind the estate and the wrongful-death beneficiaries. If someone else signed for the resident, the analysis changes.

Do I have to give up my claim if I report abuse to the state?

No. The federal rule bars an agreement from discouraging residents from speaking with officials or the ombudsman, and reporting is separate from any claim for damages.

How We Can Help

We help families who suspect a loved one was neglected or hurt in a Florida nursing home. At Ilabaca Law, PLLC, we collect the admission paperwork, evaluate whether an arbitration agreement is enforceable, handle the presuit notice, and pursue the claim in court or in arbitration, whichever is proper. Our attorney Nicholas Ravinet handles our personal injury and insurance matters. Call us at (407) 917-2087 or use our intake form to start a claim review.

This article is for general information only and is not legal advice. Reading it does not create an attorney-client relationship with Ilabaca Law, PLLC. Laws and agency rules change, and the right step depends on your individual facts. Prior results do not guarantee a similar outcome. This may be considered an attorney advertisement.