Tag Archives: Arbitration

Arbitration Agreements are Alive and Well

Anyone who follows this blog knows that I am an advocate for arbitration agreements because of the benefits they offer parties to a dispute.  They can streamline dispute resolution, reduce costs of resolution, make the process more predictable because the parties control the terms, and allow for confidentiality, all while allowing the complainant to have his or her day in court. The availability of arbitration was initially jeopardized by the November 28, 2016 regulations from the Centers for Medicare and Medicaid Services (“CMS”), with its eleventh hour attempt to pass regulations prohibiting pre-dispute arbitration agreements in the skilled care setting. …

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How a Justice Neil Gorsuch May Benefit Long Term Care Facilities

As the world knows, Tenth Circuit Court of Appeals Judge Neil Gorsuch is being considered for the vacancy on the United States Supreme Court created by the death of Justice Antonin Scalia.  Judge Gorsuch is a conservative jurist who has opined on federal agencies overstepping their mandates.  That perspective may be very helpful to an over-regulated industry, such as long term care.  In October 2016, the long term care industry saw the Centers for Medicare and Medicaid Services (“CMS”) squeeze in a re-write of its regulations just before a change in administration.  Some of those new regulations can be considered …

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CMS’ Prohibition of Pre-Dispute Arbitration Agreements for Skilled Nursing Facilities Leaves No Gaps in Its Mandate

The Centers for Medicare and Medicaid Services (CMS) regulations that become effective on November 28, 2016 include prohibiting skilled nursing facilities from including arbitration agreements in the resident admission process. The new regulation prohibits pre-dispute arbitration agreements in the skilled nursing setting. However, this regulation permits entering into such agreements once a dispute exists, implying that the parties may already be adversarial and potentially unwilling to arbitrate. This regulation does not include assisted or independent living facilities, which CMS does not regulate. The lingering question is whether it covers disputes with residents who are not Medicare or Medicaid beneficiaries. This …

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Arbitration Clauses: Dispute Resolution Allies

We tend to fear that with which we are not familiar. Management companies and insurance claims managers often express unwillingness to enforce arbitration clauses in resident admission agreements (“Agreement”) because they are not familiar with the arbitration process and would prefer doing things the way they have always been done. I would like to change that response. Arbitration clauses are agreements like any other agreement. The terms of the agreements are set by the facilities and accepted or rejected by the residents. Based on how courts enforce arbitration clauses, certain language should be included; however, whether to include an arbitration …

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Drafting a Usable Arbitration Clause

In this second of a two-part series on arbitration clauses, we start with acknowledgement that arbitration clauses in resident admission agreements (“Agreement”) are a good practice because they give you additional means of resolution and may avoid jury trials.  You have drafted your clause to include all foreseeable disputes and to require the issue of arbitrability to be decided by the arbitrator.  Now, you want to ensure that your arbitration clause cannot be rejected because it violates contract law.   Recall that the Federal Arbitration Act states that arbitration clauses are valid and irrevocable, except upon such grounds as exist for …

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