HealthBlawg

David Harlow's Health Care Law Blog

    • Twitter
    • Facebook
    • LinkedIn
    • RSS
    • Email
  • About
  • Archives
  • Podcast
  • Press
  • Awards/Reviews
  • HIPAA
  • HCSM

Bad idea: proposed nullification of pre-dispute arbitration agreements affecting nursing facility residents

March 4, 2009

From today's mailbag, courtesy of the American Health Lawyers Association:

Proposed legislation would nullify certain pre-dispute arbitration agreements.

CQ (3/4, Kim) reports, "Rep. Linda T. Sanchez (D-CA) has introduced a bill that would make pre-dispute arbitration agreements between long-term care facilities and residents invalid and unenforceable." According to Sanchez, "Arbitration agreements are often buried in overly complicated contracts, and many consumers do not realize they are waiving their legal options. … We have to protect families and seniors, and that includes giving them the tools they need to protect their full legal rights." Notably, the "American Health Care Association and the National Center for Assisted Living oppose the bill (HR 1237), arguing that pre-dispute agreements bring timely, less adversarial settlements, and help to prevent rising medical costs due to lawsuits, and allow staff to focus on patient care."

Arbitration of disputes — or better yet, mediation-arbitration — can go a long way towards speeding up the dispute resolution process, and keeping costs down.

I wrote about this issue at greater length a couple years back, when the Massachusetts courts recognized the enforceability of pre-dispute arbitration agreements in the nursing facility context, and offered a couple of practice pointers:

  • Make the med-arb agreement a separate agreement
  • Make clear that signing the med-arb agreement is not a condition of admission; to make that point even clearer, it could be signed later on (to further dispel the notion that it is a contract of adhesion entered into at the time of a nursing facility admission), but should be clearly retroactive to the date of admission
  • Make sure the person signing on behalf of the resident has the authority to do so (lack of authority is a favored argument to be made in trying to invalidate such a med-arb agreement)

Sample agreement provisions and additional information,including how to submit a dispute for resolution by mediation and/or arbitration may be obtained through the AHLA ADR Service.  I am available as a neutral through AHLA or directly through my firm.

David Harlow
The Harlow Group LLC
Health Care Law and Consulting

Filed Under: Health care policy, Health Law, Mediation, Nursing Facilities

you might also like:

  1. Mediation and arbitration of disputes between nursing facilities and their residents

  2. Nursing home arbitration agreements under fire

  3. Nursing facility rates proposed for FY 2008; thoughts on alternative care settings

« Dan Greden, head of eHealth Product Management at Aetna, speaks with David Harlow about PHRs and patient engagement
Health Wonk Review: Watchmen edition, up at MedicaidFrontPage »

Follow me on Twitter

David Harlow 💉😷 Follow 43,525 17,452

Mastodon @healthblawg@c.im #HealthCare #MedDevice #Compliance #Privacy @MyOmnipod #HIPAA #digitalhealth #HarlowOnHC #pinksocks Tweets are tweets No more no less

healthblawg
healthblawg avatar; David Harlow 💉😷 @healthblawg ·
8h 1666487986899369990

ICYMI> Oron Afek, CEO of Vim, Enabling Value-Based Care — Harlow on Healthcare https://healthblawg.com/2021/12/oron-afek-vim.html?utm_source=twitter&utm_medium=social&utm_campaign=ReviveOldPost #digitalhealth #hcldr #HITsm

Image for the Tweet beginning: ICYMI>  Oron Afek, CEO Twitter feed image.
Reply on Twitter 1666487986899369990 Retweet on Twitter 1666487986899369990 0 Like on Twitter 1666487986899369990 0 Twitter 1666487986899369990
healthblawg avatar; David Harlow 💉😷 @healthblawg ·
15h 1666382102542123009

ICYMI> Next-level Home Health Care: Ashish Shah, CEO of Dina — Harlow On Healthcare https://healthblawg.com/2022/06/ashish-shah-ceo-dina.html?utm_source=twitter&utm_medium=social&utm_campaign=ReviveOldPost #digitalhealth #hcldr #HITsm

Image for the Tweet beginning: ICYMI>  Next-level Home Health Twitter feed image.
Reply on Twitter 1666382102542123009 Retweet on Twitter 1666382102542123009 0 Like on Twitter 1666382102542123009 0 Twitter 1666382102542123009
healthblawg avatar; David Harlow 💉😷 @healthblawg ·
22h 1666276384795181056

ICYMI> Natalie Davis, CEO of United States of Care — Harlow on Healthcare https://healthblawg.com/2022/11/natalie-davis-usofcare.html?utm_source=twitter&utm_medium=social&utm_campaign=ReviveOldPost #digitalhealth #hcldr #HITsm

Image for the Tweet beginning: ICYMI>  Natalie Davis, CEO Twitter feed image.
Reply on Twitter 1666276384795181056 Retweet on Twitter 1666276384795181056 0 Like on Twitter 1666276384795181056 0 Twitter 1666276384795181056
Load More
Follow me on Mastodon

HIPAAtools

Hipaatools

The HIPAA Compliance Toolkit

The Walking Gallery

The Walking Gallery

Quick Links

  • Home
  • Categories
  • Archives
  • Podcast Interviews
  • HIPAAtools
  • HIPAA Compliance
  • Health Care Social Media
  • Speaking
  • In the Press
  • Blogroll

David Harlow

David Harlow

HealthcareNOW Radio

Connect with David

  • Twitter
  • Facebook
  • LinkedIn
  • RSS
  • Email
  • Subscribe
  • Contact
  • Book Me: Speaking
  • About
  • The Harlow Group LLC
Copyright © 2006–2023
HealthBlawg is a publication of The Harlow Group LLC. See Copyright notice and disclaimer.
Fair use with attribution and a link is encouraged. Click for more on David Harlow.
[footer_backtotop text="Back to top" href="#"]