Nursing Home Arbitration Agreements: Can You Get Out?

Nursing home admission happens under pressure. A hospital is discharging a parent, a bed has come free, and someone hands a family member a folder of paperwork to sign — often dozens of pages, often at the worst possible moment for careful reading.

Somewhere in that folder there is frequently a pre-dispute binding arbitration agreement. It waives the right to a jury trial for anything that later happens in the building. Two federal rules about it are worth knowing, and almost nobody is told either one at the table.

Quick answer: A certified facility cannot require an arbitration agreement as a condition of admission or continued care, and the agreement must say so in its own text. You also have the right to rescind within 30 calendar days of signing. Separately, the person who signed may not have had legal authority to waive the resident’s jury-trial right at all — which is the most frequently successful challenge.

How the Rule Got to Where It Is

The regulatory history explains why so much published advice on this is wrong, and why the answer depends heavily on what year the source was written.

2016 — CMS banned them. A final rule prohibited pre-dispute binding arbitration agreements in certified long-term care facilities outright.

Late 2016 — a court blocked the ban. The industry sued, and the U.S. District Court for the Northern District of Mississippi preliminarily enjoined it (American Health Care Association v. Burwell).

2019 — CMS repealed the ban and regulated instead. A final rule at 84 Fed. Reg. 34718, effective 16 September 2019, permits pre-dispute arbitration agreements subject to conditions.

That 2019 framework is what still governs in 2026. Anything you read describing an outright federal ban is nearly a decade out of date.

One citation caution, if you or your attorney are looking the rule up: most secondary sources still cite it as 42 CFR § 483.70(n), which was the numbering at the time. A later redesignation of § 483.70 moved the arbitration provisions to § 483.70(m). Check the current eCFR text rather than trusting a quoted paragraph letter, since this section has been amended more than once recently.

What the Facility Must Actually Do

Under the current rule, a certified facility that uses arbitration agreements must satisfy all of the following. Each is a point of potential failure worth checking against your own paperwork:

1. It cannot be a condition of admission or of continued care — and the agreement must explicitly state that signing is not required.
2. It must be explained to the resident or their representative in a form and manner they understand, and they must acknowledge that they understand it.
3. A 30-calendar-day right to rescind must be granted after signing.
4. It cannot contain language prohibiting or discouraging communication with federal, state or local officials — including surveyors and the long-term care ombudsman.
5. It must provide for a neutral arbitrator and a venue convenient to both parties.
6. The facility must retain the signed agreement and any arbitrator’s decision for five years and make them available to CMS on request.

Surveyors enforce these under tags F847 and F848, which means a facility’s failure here can itself appear in its inspection record — see our guide to using nursing home inspection records as evidence.

Why It Matters More Here Than in Other Claims

Arbitration clauses are common across consumer contracts, but they cut deeper in a nursing home case for a specific structural reason: these claims are proven with the facility’s own internal records.

A nursing home neglect claim is built from the nursing chart, the care plans and their revisions, the medication administration record, incident reports for other residents where a pattern is alleged, and the actual staffing schedules for the shifts in question. All of it is in the defendant’s possession. In litigation, a plaintiff can compel it. In arbitration, discovery is typically much narrower — which shifts the balance considerably when the entire case depends on records only one side holds.

The other differences matter too: no jury, limited or no appeal, and usually confidentiality, which means the outcome contributes nothing to the public record that future families might rely on.

The Authority Question — Often the Strongest Argument

Even where a facility followed the rule perfectly, there is a prior question: did the person who signed have the legal authority to waive the resident’s right to a jury trial?

Admission paperwork is frequently signed by an adult child during a hospital discharge. Signing admission documents is not the same as holding authority to surrender a constitutional right on someone else’s behalf. Whether they had it depends on the scope of any power of attorney, guardianship or health care proxy under state law — and a health care proxy authorising medical decisions does not necessarily authorise waiving legal remedies.

This is heavily litigated, and it is where arbitration agreements are most often defeated. If a relative signed, gather the actual authority documents in effect on that date before assuming the agreement binds the resident.

What to Do Now

1. Find the admission agreement and check the signing date. If it is within 30 days, the rescission right is live and time-sensitive.
2. Look for the required “not a condition of admission” language. Its absence is a defect in the agreement, not a technicality.
3. Identify who signed and under what authority, and locate the power of attorney, guardianship order or proxy as it existed on that date.
4. Do not sign new paperwork presented after an injury without review — including anything framed as a routine update.
5. Check the facility’s inspection history for F847 or F848 citations, which would show a pattern of mishandling these agreements.
6. Have an attorney review the agreement before you assume you are bound by it. The document being signed is not the end of the question.

Sources & Further Reading

• 84 Fed. Reg. 34718 (18 July 2019, effective 16 September 2019) — the current CMS rule permitting pre-dispute arbitration agreements subject to conditions, replacing the 2016 prohibition
• 42 CFR § 483.70 — the arbitration provisions, at paragraph (m) following redesignation; many secondary sources still cite the former (n). Verify against the current eCFR text.
• American Health Care Association v. Burwell, No. 3:16-cv-00233 (N.D. Miss. 2016) — the preliminary injunction that blocked the 2016 ban
• CMS State Operations Manual, Appendix PP — surveyor guidance, including tags F847 and F848 for arbitration-agreement requirements
• State law on the authority of an agent under a power of attorney, guardian or health care proxy to bind a principal to arbitration — the question that decides most challenges, and the one that varies most by state
• See our guides to how nursing home abuse and neglect claims work and whether a nursing home claim is treated as medical malpractice.