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

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

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