Arbitration Agreements: Are They Enforceable?

Few issues regarding skilled nursing facilities are as controversial pre-dispute, binding arbitration agreements. Moreover, even fewer have been litigated much The Federal Arbitration Act (FAA), enacted by Congress almost a century ago in 1925, facilitates dispute resolution having neutral and objective third party render decision on the disputed issue that “shall be valid, irrevocable, enforceable” (9 U.S.C. §§ 1–16). Neither judge nor jury is involved with an arbitration, which allows parties to resolve their disputes fair, efficient, cost-effective manner without considerable expense protracted time litigation requires.In enacting FAA, sought “reverse longstanding judicial hostility agreements ... place upon same footing other contracts” (Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24 [1991]). In 2019, Supreme Court unanimously upheld agreement Henry Schein, Inc. Archer & White Sales, (592 [2021]), noting trend of federal courts defer stated, “Under [Federal Arbitration] Act, matter contract, must enforce contracts according terms” (citing Rent-A-Center, West, Jackson, 561 U. S. 63, 67 [2010]).Although legal contracts, most things devil details. There times when — will struck down courts. Additionally, long-term care, if between resident facility unenforceable or otherwise flawed, it likely give rise deficiency enforcement action from Centers for Medicare Medicaid Services (CMS).Binding, pre-dispute contractual made before any problems arise. these used continue offers opportunity elect arbitrate rather than litigate potential future disputes. Some advocacy groups view one-sided coercive arrangements deprive residents right sue facility. Even New York Times Editorial Board concurred various calling ban agreements, wrongly claiming they deny justice (New Times, Nov. 7, 2015, https://nyti.ms/35gqrNy). Not surprisingly, trial lawyers lobby has pushed hard care obvious reason: make tens millions dollars “nursing home negligence” cases.Apparently those who opposed 2016 Obama administration promulgated regulation prohibited care. Our story begins prohibition.BackgroundOn October 4, 2016, CMS published final rule (“Reform Requirements Long-Term Care Facilities,” henceforth “Final Rule”) amended at 42 C.F.R. § 483.70(n) such entering into individual representative (Fed Reg 2016;81:68688–68872). response Final Rule, American Health Association (AHCA) number homes filed complaint District seeking both preliminary permanent injunctions, would preclude enforcing its newly regulation. district court agreed AHCA issued injunction, meaning could not antiarbitration regulation.Two months after December 9, directed all state survey agencies cite based Rule’s prohibition (Given court’s had no choice.) Then, June 8, 2017, another proposed agreements.CMS received more 1,000 comments rule, revised prior Based part analysis public impact July 18, (again) Rule concerning agreements: blanket was gone. However, some important elements remained, we discuss next.The (Really, We Mean It This Time)The new improved dealing became effective September 16, governed (see https://www.law.cornell.edu/cfr/text/42/483.70). requires comply following:•Facilities require his/her sign condition admission requirement remain facility, this point.•The explained understood acknowledged representative.•The agree venue arbitrator event arbitration.•Either may rescind within 30 calendar days execution.•The attempt prohibit discourage communicating local, state, officials, including state’s Long Term Ombudsman surveyors.•A copy signed arbitrator’s retained five years resolved, available designees (such surveyors).RecommendationsNursing should develop implement appropriate policies procedures necessary. All staff admissions process, especially educated facility’s procedures. State laws impose additional requirements Therefore, carefully reviewed ensure fully complies applicable regulations well laws.ConclusionThe regulation’s requirements, noted previously, “best practices” minimum requirements. fair. As observed, “Arbitration alternative means resolution.” Residents representatives never coerced signing agreement. Rather, free choose over so long done knowingly undue influence. Respecting competent resident’s (or representative’s) choice falls under rubric rights honored.Mr. Horowitz Of Counsel Arnall Golden Gregory LLP. His practice involves regulatory compliance facilities, hospices, health agencies. Prior joining firm, he served Assistant Regional Department Human represented Services. Mr. also extensive experience provider. requires. [2010]). Although (CMS). Binding, cases. Apparently prohibition. BackgroundOn next. On Two surveyors). RecommendationsNursing laws. Nursing ConclusionThe honored.