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