Hands off the arbitration options

James M. Berklan
James M. Berklan

Whether it's a J.K. Rowling novel, Tom Clancy adventure or run-of-the-sawmill book of government regulations, when there's 403 pages, it's going to take time to digest. With regulation revisions, heartburn often follows.

Long-term care providers have experienced this as much as anyone since the White House Conference on Aging last month. That was when the Obama administration plopped no less than 403 pages of rule revisions at their feet.

Ironically, it was something NOT proposed in that massive release that has caused some of the greatest discomfort.

Right up there with Marc Antony's “I come to bury Caesar, not to praise him” soliloquy, officials at the Centers for Medicare & Medicaid Services let slip that they had considered totally outlawing binding nursing home arbitration clauses. They backed off the idea, they said, because it would be too hard on providers. 

But then they decided to ask for comments on the idea anyway, well, just in case there might be support for it after all.

Friends, readers, countrymen, lend me your eyes. What CMS has proposed, er, not proposed, is unnecessary.

Most states already regulate arbitration agreements. Separate locations for them, along with font specifications and anything else that makes them easier to read, are excellent ideas. Those parts of CMS' proposal should stand.

CMS should not have the right to dictate what may be arbitrated  — especially for providers in a “judicial hellhole,” as one industry veteran puts it. The costs for everyone go way up in those places.

Residents and family members should still have the right to say “yes” or “no” to any proposed agreement. And arbitration agreements should be distinct from other parts of admissions paperwork — with distinct typesetting and an appropriately readable format.

But the option should still be there for parties who want to settle disputes among themselves — without putting extra bulges in “helpful” lawyers' pockets. Remember: Courts already have the power to step in when contract abuse is in play.

Otherwise, the process becomes “like pulling threads in a garment: The whole thing can come apart,” as one insider observes.

And if there's anything nobody wants, it's flammable dangling threads around fiery situations.

James M. Berklan is McKnight's Editor. Follow him @JimBerklan.

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McKnight's Daily Editors' Notes features commentary on the latest in long-term care news and issues. Entries are written by Editorial Director John O'Connor, Editor James M. Berklan, Senior Editor Elizabeth Newman and Staff Writer Emily Mongan.

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