Arizona’s attorney general is attempting to intervene in a civil lawsuit against a nursing home, arguing the facility’s attempt to compel arbitration and enforce a “secrecy clause” makes a signed agreement legally unenforceable.
“The Arbitration Agreement violates Arizona law and policy because it forces claims of vulnerable adult abuse into secret proceedings, thereby eliminating the important role of the Attorney General under APSA [the state’s Adult Protective Services Act],” AG Kristin Mayes said Monday in a motion filed with the Superior Court for Maricopa County.
This is the second time Mayes has intervened in a lawsuit to strike down a privacy provision, and in a press release she vowed to use the tactic “as many times as it takes” to force long-term care facilities to “stop presenting these illegal secret arbitration agreements to stressed-out families as part of the admissions paperwork.”
One legal expert believes the move is unprecedented outside of Arizona.
Arbitration agreements are strictly voluntary under federal law and cannot be forced on a resident or family as a condition of admission. Although courts and regulators have weakened arbitration rights in recent years, many providers continue to offer agreements as a way to reduce protracted and costly legal battles.
“There is nothing in the federal regulations that prohibits the inclusion of such clauses as long as there is no language that prohibits or discourages communications with federal, state or local officials … and nothing in the state regulations that I am aware of, either,” Baker Donelson attorney and shareholder Craig Conley told McKnight’s Long-Term Care News Tuesday.
“Confidentiality provisions keep the entire proceedings confidential including the pleadings, medical records, personal information, testimony, etc., “ added Conley, who often works with skilled nursing clients developing or refining arbitration agreements. “Long-term cases involve very personal matters including medical histories, diagnoses, etc. that can be protected from disclosure and the public and media by use of a confidentiality provision in the arbitration agreement.”
Allegations target nursing home giant
Mayes said the Arizona Legislature banned arbitration contracts from containing privacy or secrecy clauses “decades ago.” She is attempting to intervene in a case brought by Wendy Knight, whose husband was a resident at Sun West Choice Health & Rehab between 2019 and 2022.
Knight alleges abuse and neglect of a vulnerable adult in a lawsuit, citing her husband’s death following discovery of a 4-inch by 6-inch pressure wound. An autopsy also revealed Robert Knight had pneumonia.
The nursing home, its partners and owners, including Apache Trail Healthcare, Bandera Healthcare and The Ensign Group, have asked the court to compel arbitration. A representative for Ensign told McKnight’s an attorney for Sun West will respond directly to the Attorney General’s Office on this issue.
Mayes said she would ask the court to invalidate secret arbitrations for “every patient in every facility operated by The Ensign Group, Inc.,” which she said has more than 5,000 beds in the state.
“When families are forced to keep silent about abuse and neglect because of illegal arbitration agreements, the system cannot work as intended,” Mayes said. “Any arbitration agreement that blocks victims from reporting their claims to the Attorney General violates Arizona law and cannot be enforced.”
Mayes argues that Arizona law requires notice to the attorney general when a case involves abuse, neglect or exploitation of a vulnerable adult. She has told the court her office is entitled to intervene because the matter is of “special public importance.”
Other efforts on privacy protections?
Azcentral.com reported that Mayes successfully voided secrecy clauses at a senior living campus in February.
Conley said he was unaware of another state taking similar measures.
While he acknowledged Arizona’s Adult Protective Services Act likely gave the attorney general the right to intervene in the case, he believes that the voluntary nature of an arbitration agreement “weighs in favor of including these type provisions and upholding the validity.”
“Confidentiality provisions are not unheard of, especially in relation to settlements,” he added. “I also require that any settlement agreement I reach with adverse counsel contains a confidentiality provision that is mutual. Including such a provision in an arbitration agreement is not unheard of and is routinely used, in my experience.”
