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Nursing homes are increasingly deploying carefully drafted written agreements to protect their financial and legal interests. These documents often go far beyond standard admission paperwork. Facilities include provisions designed to:
- Create or strengthen filial responsibility obligations, potentially making adult children personally liable for a parent’s unpaid care costs.
- Limit liability for care incidents, falls, neglect, or other adverse outcomes through arbitration clauses, damage caps, or waivers.
- Channel disputes away from courtrooms and into private arbitration, which is often more favorable to the facility.
In Cole v. Arbor Court Healthcare, LLC, a nursing home resident signed an arbitration agreement shortly before her death. Her husband sued the facility for negligence, gross negligence, wrongful death, and dependent adult abuse. The nursing home initially litigated the case aggressively for months, including participating in pre-trial discovery, before attempting to compel arbitration.
Her husband opposed the motion, asserting that it was procedurally unconscionable and that the nursing home had waived its contractual right to arbitration. The district court granted the nursing home's motion for arbitration. The Iowa Supreme Court granted the husband's motion for an interlocutory appeal.
The Iowa Supreme Court ruled in favor of the husband on key points:
- The nursing home waived its contractual right to arbitrate by its conduct (continuing to litigate for seven months after the plaintiff refused arbitration).
- Iowa’s previous arbitration-specific waiver test (which required the opposing party to show prejudice) was preempted by the Federal Arbitration Act (FAA). The court followed the U.S. Supreme Court’s decision in Morgan v. Sundance, Inc. (2022), applying ordinary contract waiver principles instead of special rules that favored arbitration.
Nursing homes routinely present families with multi-page admission packets containing:
- “Responsible party” or guarantor clauses that attempt to impose personal financial liability.
- Mandatory pre-dispute arbitration agreements.
- Releases or limitations on claims related to care quality.
The increasing sophistication of nursing home admission agreements, coupled with federal preemption of state protections, creates real uncertainty for families. Even with favorable rulings like Cole, litigation is expensive, time-consuming, and unpredictable.
If it is medically and financially feasible, aging in place at home remains the safest and most controllable option.
Proactive elder law planning gives families far more protection and peace of mind than relying on nursing home contracts or hoping for a favorable court outcome after something goes wrong.Practical Steps for Families
- Never sign admission documents on the spot. Have them reviewed by an experienced attorney before signing.
- Explicitly cross out or reject any “responsible party” financial guarantee language and arbitration clauses when possible.
- Document all communications with the facility.
- Build a strong aging-in-place plan now: comprehensive advanced directives in trusts and powers of attorney, guardianship protections, home modifications when necessary, and family caregiving agreements.
- Consider long-term care insurance or hybrid policies as part of your overall strategy.
- Consider and re-evaluate Medicare choices to deploy, if possible, alternatives to institutional care.
The regulatory and contractual reality of long-term care is increasingly complex and tilted toward the utilization and protection of institutional facilities. The best defense is preparation and planning to keep your loved one at home whenever possible.
