Probably not the end of it. Many New Mexico nursing homes ask families to sign a binding arbitration agreement in the admission paperwork, which would move a future abuse or neglect claim out of court and away from a jury. But federal rules say a nursing home cannot make that agreement a condition of admission, residents get 30 days to cancel it, and New Mexico courts have refused to enforce agreements that were written unfairly in the nursing home's favor.
What an arbitration agreement does
Binding arbitration sends a dispute to a private arbitrator instead of a judge and jury. It is usually faster and private, and the right to appeal is very limited. For a family whose parent was neglected or abused in a care facility, it can mean no jury ever hears what happened. These agreements are often a few pages buried in a thick admission packet, signed on a stressful day by an adult child who had little time to read them.
What federal law requires
Nursing homes that take part in Medicare or Medicaid must follow the federal rules for long-term care facilities. One of them, 42 C.F.R. 483.70(m), sets the terms for arbitration agreements:
- The facility "must not require" a resident or representative to sign one "as a condition of admission" or to keep receiving care, and must explicitly say so.
- The agreement must be explained in a form and language the resident and representative understand, and they must acknowledge that they understand it.
- It must provide for a neutral arbitrator both sides agree on and a venue convenient to both.
- It must give the resident or representative the right to cancel it "within 30 calendar days of signing it."
- It may not discourage anyone from talking to state or federal inspectors or the long-term care ombudsman.
If your family member was admitted within the last 30 days, you may be able to cancel the agreement now, in writing. Keep a copy of what you send.
New Mexico courts look hard at one-sided agreements
In Ruppelt v. Laurel Healthcare Providers, 2013-NMCA-014, a daughter brought a wrongful death claim over her father's care at a New Mexico nursing home, and the home tried to force the case into arbitration. The agreement required arbitration of most claims but carved out disputes over collections and discharge, the kinds of claims the nursing home itself was most likely to bring. The Court of Appeals agreed with the district court that the agreement was unfairly one-sided and held the arbitration provision "unenforceable." The case went forward in court.
Not every agreement fails. Whether one can be enforced depends on its wording, how and when it was signed, who signed it, and whether the facility followed the federal rules. That review is one of the first things we do.
What we check in every nursing home arbitration agreement
- Was it a condition of admission? Paperwork or staff that told the family the resident could not be admitted without signing points to a violation of the federal rule.
- Does it say, in plain terms, that signing is optional? The federal rule requires the agreement itself to say so.
- Does it include the 30-day right to cancel? An agreement without it does not follow the rule.
- Is it one-sided? Carve-outs that keep the facility's own likely claims, like collections or evictions, in court while sending the family's claims to arbitration are what sank the agreement in Ruppelt.
- Who chooses the arbitrator, and where? The rule calls for a neutral arbitrator both sides agree on and a convenient location. An arbitrator picked by the facility, or a hearing far from Gallup, is a problem.
- Was it explained in a language the family understands? That includes families who are more comfortable in Navajo or Spanish.
- Who signed it, and when? The date, the signer, and what the family was told at the time are part of the record we build.
Even with arbitration, the claim does not go away
An enforceable arbitration agreement changes where a case is decided, not whether the nursing home is responsible. Neglect that causes bedsores, falls, dehydration, or infections, and abuse by staff, can still be pursued, and the same evidence still matters. Our nursing home and elder abuse page covers the warning signs, who can be held responsible, and New Mexico's duty to report suspected abuse.
What families should do
- Find the admission paperwork, or ask the facility for a copy of everything that was signed.
- Check the date. If it has been less than 30 days, ask us about cancelling the arbitration agreement in writing.
- Write down what you have seen, with dates, and take photos of injuries and conditions in the room.
- Report suspected abuse. New Mexico requires anyone who knows of abuse, neglect, or exploitation of an incapacitated adult to report it.
- Do not let the paperwork stop you from calling. Most injury claims in New Mexico must be filed within three years (Section 37-1-8), and wrongful death claims follow their own rules (see our wrongful death page).
Where we come in
Keeler & Keeler represents residents and families from Gallup, McKinley County, and the Navajo Nation in claims against nursing homes and care facilities. We review the admission paperwork, including any arbitration agreement, and tell you plainly where the case can be heard and whether it is worth pursuing.
Call (505) 722-5608 for a free, confidential case review. There is no fee unless we win; clients may remain responsible for case costs and expenses.
General information about federal and New Mexico law, not legal advice. Whether a particular arbitration agreement can be enforced depends on its terms and how it was signed.
