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Minn. AG seeks protection for nursing home residents: Signing away 'significant legal claims' a risk

ST. PAUL - Minnesota's attorney general is urging the federal government to enact rules that would help ensure people who are entering a nursing home don't sign away their right to take disputes with the nursing home to court.

ST. PAUL – Minnesota's attorney general is urging the federal government to enact rules that would help ensure people who are entering a nursing home don't sign away their right to take disputes with the nursing home to court.

Waiving the right to legal action is presented to Minnesotans as a separate agreement when someone moves to a nursing home, while in many states it is buried deep in the fine print of lengthy admissions contracts. But Attorney General Lori Swanson said that regardless of how it is presented, Minnesotans should not be asked to give away their right to go to court.

Swanson and attorneys general from 14 other states have asked federal officials to order nursing homes, assisted living centers and other long-term care facilities to remove mandatory arbitration clauses from admission contracts.

"We do know that Minnesota is a bit different than other states," CEO and President Patti Cullen of Care Providers of Minnesota said. "Our arbitration agreements are different than our admission agreements."

Families sign many documents when someone goes into a long-term care facility, items such as the admissions contract and the nursing home resident bill of rights.

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Those preparing for nursing home admission face lots of decisions and a Swanson spokesman said that even if Minnesota requires a stand-alone arbitration contract that family members may not fully understand what they are signing.

"You are giving up significant legal claims," Swanson said of those who accept arbitration upon nursing home admission.

In an interview, Swanson said that residents and their families sign the contracts in a stressful time, and they may not understand that if they want to bring a wrongful death or resident neglect claim later on, for instance, they cannot go to court.

"There is a lot of information when you are admitted," Cullen said.

Minnesotans have told the attorney general's office of cases where the arbitration contract restricted what families could do, Swanson said, but she did not know how many have contacted her office.

She also did not know how many nursing homes and other facilities seek signatures on arbitration contracts. Cullen said about half of facilities in her organization have arbitration contacts and she thinks a majority of people who are offered the arbitration agreement sign it.

"Minnesota has relatively few issues with litigation because we have separate arbitration agreement," Cullen said.

Arbitration often is used when two people or companies cannot agree on something and they decide to find an arbitrator to make the decision, saving time and money it would take to go to court. The nursing home contract, however, makes the decision before any issue arises.

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Federal officials in July asked state leaders for opinions about whether the arbitration clauses should be allowed.

Cullen said that her members prefer to leave things the way they are. Federal rules allow arbitration clauses within broader contracts, but since state law does not, it is not the problem in Minnesota that it is elsewhere, Cullen said.

"It is a solution to a problem that doesn't exist," Cullen said, adding that her group has sent comments to the federal government "telling them to leave it alone."

However, if federal officials come back with a rule that overturns Minnesota law, facilities might be able to include arbitration clauses within overall admission contracts.

Swanson, on the other hand, has a track record of fighting mandatory arbitration because it removes legal rights she said Minnesotans should retain.

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