Seven Red Flags To Watch For in a Florida Nursing Home Admission Agreement

Placing a loved one in a Florida nursing home is undeniably one of the most emotionally challenging processes a family can endure. Nevertheless, it’s critical not to let your guard down when reviewing the nursing home admission agreement. Nursing homes are well aware that families may not fully comprehend what is permissible under the law. As a result, some nursing homes slip unfair or even illegal clauses into these contracts in an effort to impact your right to sue for nursing home abuse or neglect, saddle family members with unexpected financial responsibility, or limit essential rights like visitation.[FN1]

As attorneys who previously defended these facilities and now represent victims and families in cases of nursing home abuse, neglect, and wrongful death, we’ve reviewed countless admission agreements and understand how these contracts can be used to protect the facility's interests rather than the resident’s. Families should be aware of several red flags in nursing home admission agreements that could limit their legal rights, expose them to financial risk, or hide unfair contract terms. Below are seven red flags every family should look for before signing a Florida nursing home admission agreement. Knowing these can help protect your loved one’s rights.

1. Arbitration Clauses - 42 C.F.R. 483.70(n)

One of the most contentious provisions in nursing home contracts is the binding arbitration clause. A binding arbitration clause requires disputes (including claims of abuse, neglect, and wrongful death) to be resolved through private arbitration instead of through the public court system.

Nursing homes often prefer arbitration because it’s a quicker, more cost-effective way to resolve allegations without creating a public record and without facing potentially large jury verdicts. However, for victims of abuse or neglect, arbitration can mean losing their right to present their case to a jury and potentially receiving less compensation.

That said, a nursing home can ask a resident or his/her legal representative to sign an agreement with an arbitration clause under the following circumstances:

(a) A nursing home may not require that a resident or his/her representative sign an agreement for binding arbitration as a condition of admission to, or as a requirement to continue to receive care at, the nursing facility. In fact, language to this effect must be included in the agreement. This ensures that no resident or his or her representative will have to choose between the resident obtaining the skilled nursing care he or she needs and signing an agreement for binding arbitration.

(b) A nursing home must ensure that the arbitration language is explained to the resident or his/her representative in a form and manner that he or she understands, including in a language that he or she understands, and that the resident or his or her representative acknowledges that he or she understands the agreement. These two requirements ensure that the arbitration agreement is transparent and the resident or his/her representative understand what he or she is signing.

(c) A nursing home must ensure that the agreement provides for the selection of a neutral arbitrator agreed upon by both parties and a venue that is convenient to both parties. These requirements helps to ensure that the arbitration process is fair to both parties, especially the residents.

(d) The binding arbitration agreement must explicitly grant the resident or his/her representative the right to rescind the agreement within thirty (30) calendar days.

(e) A nursing home must ensure that the agreement does not contain any language that prohibits or discourages the resident or anyone else from communicating with federal, state, or local officials, including Federal or state surveyors, other federal or state health department employees, or representative of the Office of the State Long-Term Care Ombudsman. This protects the resident and his or her representative from any undue influence by the nursing home to not discuss the circumstances surrounding a concern, complaint, or grievance.

(f) A nursing home must retain copies of the signed agreement for binding arbitration and the arbitrator’s final decision for five (5) years after the resolution of any dispute resolved through arbitration with residents and make these documents available for inspection upon request by the Centers for Medicare of Medicaid (“CMS”) or its designee (i.e., the Agency for Health Care Administration). This ensures that CMS can obtain information on how nursing homes are using the arbitration process, and the outcomes for residents.

Key Takeaway: If you see an arbitration clause in a Florida nursing home admission agreement, slow down and seek legal advice. Signing away your right to a jury trial can have significant consequences in cases of nursing home abuse, neglect, or wrongful death. Always have an experienced attorney review any contract before you sign.

2. Financial Responsibility of Third Parties - 42 CFR 483.15(a)(3)

A common question we hear is:

“Am I financially responsible if I sign a nursing home admission agreement for someone else?”

The answer is generally “No”.

A nursing home that participates in Medicare and/or Medicaid can neither request nor require a third-party to guarantee payment to the facility as a condition of admission, expedited admission, or continued stay in the facility.

For example, a nursing home admission agreement cannot require a son, daughter, or any other person to guarantee payment if Medicare, Medicaid, or another payor fails to cover some or all of a resident’s care, treatment, room, or board. Even if someone unknowingly signs such a provision, it is unlawful and unenforceable under federal law.

That said, be wary of a facility’s attempt to classify you, the third party, as a “responsible party” or “guarantor”. Third parties should only be signing the admission agreement in the following capacities:

(a) for [insert resident’s name],

(b) as agent of [insert resident’s name],

(c) on behalf of [insert resident’s name],

(d) as legal representative for [insert resident’s name],

(e) as power-of-attorney (POA) for [insert resident’s name], or

(f) as court-appointed guardian of [insert resident’s name].

However, there's an important distinction to be made. A nursing home can insist that a resident’s legal representative with legal access to the resident’s income and resource use those funds to pay for care and treatment, where necessary, so long as the resident’s legal representative is not incurring any personal financial liability.

For example, if a daughter has a Durable Power of Attorney giving her authority to handle her mother’s finances, the nursing home can insist that the daughter pay facility bills using her mother’s funds. But the daughter cannot be forced to use her personal funds to pay for her mother’s care.

Though beyond the scope of this blog, it’s worth noting that if Medicaid denies coverage for services (usually due to lack of medical necessity), the facility generally cannot seek reimbursement from the resident or the resident’s family. This is because federal law prohibits “balance billing,” requiring Medicaid-certified facilities to accept Medicaid payment as payment in full (42 C.F.R. § 447.15). However, if a resident is Medicaid pending and Medicaid ultimately denies the entire application (typically due to financial ineligibility), the resident becomes responsible for all facility charges incurred up to that point.

Key Takeaway: A nursing home cannot require personal liability from a third party. However, it can require a legal representative to use the resident's funds to pay for appropriate facility charges.

3. Waiver of Rights - 42 C.F.R. 483.15(a)(2)

Nursing homes cannot require residents or potential residents to waive their legal rights as a condition of admission. For example:

• A Florida nursing home cannot demand that a resident agree not to apply for Medicare or Medicaid benefits. No facility can force you to stay private-pay if you’re eligible for government benefits.

• Similarly, a nursing home cannot require residents to waive the facility’s liability for lost personal property. Residents have the right to expect the facility to safeguard their belongings.

  
  

These protections exist because some facilities have historically used admission contracts to slip in unfair waivers, hoping residents or families wouldn’t notice.

If you see any clause in a Florida nursing home admission agreement requiring you to give up your legal rights or benefits, that’s a serious red flag. Never sign such provisions without legal advice.

Key Takeaway: Nursing homes cannot make admission contingent on giving up rights to government benefits or waiving facility liability. Residents always retain the right to pursue Medicare, Medicaid, and legal remedies for losses or harm.

4. Additional Charges for Services Covered by Medicaid - 42 C.F.R. 483.15(a)(4); 42 C.F.R. 483.10(f)(11); and 42 C.F.R. 483.10(f)(17)-(18)

A Florida nursing home cannot charge, request, or accept any extra payments on top of what Medicaid covers as a condition for admission, expedited admission, or continued stay in the facility. In other words, a nursing home cannot demand additional sums beyond the Medicaid daily rate for services already included in Medicaid coverage. Doing so would be unlawful balance billing.

There’s one limited exception: a nursing home may accept voluntary charitable donations, but only if the donations are truly voluntary and not connected to a particular Medicaid-eligible resident. The facility cannot tie donations to a resident’s care or admission.

However, a nursing home can charge a Medicaid resident for services that Medicaid does not cover, as long as: (a) The nursing home gives advance written notice of the availability and cost of these services and (b) The resident is not required to purchase these optional services as a condition for admission or continued stay.

Examples of non-covered services might include private rooms, special amenities, or elective personal services. Residents should always ask for a clear price list for any optional services before agreeing to pay.

Key Takeaway: If a Florida nursing home tries to charge extra fees beyond the Medicaid rate as a condition of admission or care, that’s a serious red flag. Residents cannot be forced to pay more for covered services.

5. Restrictive Visitation Policies - 42 C.F.R. 483.10(f)(4)

Generally, a Florida nursing home cannot limit visitation or impose strict visiting hours unless there’s a valid safety or clinical reason for doing so, such as during a public health emergency like COVID-19.

Under federal law, a nursing home resident has the right to receive visitors at any time, provided the visit doesn’t infringe on the rights of other residents. For example:

• If a resident shares a room with another person, off-hours visitation might disturb the roommate’s sleep. In such cases, the nursing home should accommodate visits in the facility’s common areas.

• Facilities cannot adopt blanket policies that permanently restrict visitation without a legitimate medical or safety justification.

  
  

Be wary if a Florida nursing home tries to impose rigid visiting hours without explanation. Such limitations might violate a resident’s legal rights under 42 C.F.R. 483.10(f)(4).

Key Takeaway: Nursing home residents have the legal right to receive visitors of their choice at reasonable times. Facilities cannot impose restrictive visitation rules unless there’s a valid safety or clinical reason.

6. Liability Waivers

A Florida nursing home cannot require residents or their legal representatives to sign liability waivers as a condition of admission or continued care. This means that a nursing home cannot force residents to:

• Waive the facility's liability for future injuries or harm

• Agree to a cap on damages if a dispute arises

• Waive the right to punitive damages

  
  

Florida courts have found these provision to be unenforceable public policy violations that directly frustrate the remedies created by statute. Gessa v. Manor Care of Florida, Inc., 86 So. 3d 484, 493 (Fla. 2011).

Key Takeaway: Never sign a Florida nursing home admission agreement containing a liability waiver, damages cap, or waiver of punitive damages. Such provisions are unenforceable and a major red flag.

7. Unilateral Modification of Terms

A Florida nursing home should not have the power to change the terms of a nursing home admission agreement without your written consent. Be cautious of any language in a contract that allows the facility to unilaterally modify the terms of the agreement—even if they promise to give you notice of the changes. Such clauses are dangerous because:

• They let the nursing home change important financial or legal terms without your approval.

• You could suddenly face new costs or lose important rights without signing anything new.

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Always read a Florida nursing home admission agreement carefully and strike out any provisions that allow the facility to unilaterally change the contract.

Key Takeaway: Never sign a Florida nursing home admission agreement that allows the facility to change terms without your written consent. That’s a major red flag.

Protect Your Rights Before You Sign

Understanding the legal implications of nursing home admission agreement provisions is crucial to protecting yourself or your loved one. These contracts often contain hidden clauses that could limit your legal rights, expose you to unexpected financial liability, or restrict essential freedoms like visitation.

Don’t feel pressured to sign a Florida nursing home admission agreement on the spot. Instead:

✅ Read every provision carefully.

✅ Strike out or remove unfair clauses.

✅ Ask questions and demand clear answers.

✅ Seek legal guidance if you’re unsure.

At FIDJ, we hold nursing homes accountable for abuse, neglect, and wrongful death. If your loved one suffered harm, contact us for a FREE case review.

FN1: Paragraphs 1-6 only apply to Medicare and/or Medicaid providers.