Make arbitration an option — an obvious one

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John O'Connor
John O'Connor

Like so many other contemporary debates, the arbitration issue has degenerated into a talking-points battle.

Boiled down, advocates insist arbitration agreements are good for businesses and consumers; opponents counter that only the first part is accurate.

The issue has taken on growing import recently. In June, the Centers for Medicare & Medicaid Services announced it would support arbitration's enhanced use in skilled-care settings.

Not surprisingly, where the respective warring parties stand has come down to where they sit.

American Health Care Association CEO Mark Parkinson said that studies repeatedly show “arbitration is fair and speeds judgments in a cost-effective manner that benefits those injured more than anyone else.”

It's a view that aligns with the U.S. Chamber of Commerce's position. Matt Webb, a senior vice president with the chamber said arbitration “is a system that is simpler, fairer and faster for all parties concerned."

But if such arguments are playing to the pro-business base, consumer organizations — and a growing number of lawmakers — remain less than fully convinced.

They like to point out a study done by the advocacy group Public Citizen. Over four years, California arbitrators ruled on the side of banks and credit card companies more than 90% of the time, investigators found.

Moreover, opponents argue that such agreements are often buried in a boatload of documents that residents (or their proxies) must sign en masse during admission — often without realizing the legal rights they are about to abandon.

During the August recess, more than 30 senators sent a letter to CMS boss Seema Verma, calling for an end to the organization's pro-arbitration efforts.

“Forced arbitration clauses in nursing home agreements stack the deck against residents and their families who face a wide range of potential harms, including physical abuse and neglect, sexual assault and even wrongful death at the hands of those working in and managing long-term care facilities,” the letter reads in part.

Both sides would appear to be raising valid claims. So how do we get to resolution?

The usual method in Washington is to line up as many lawmakers as possible, then force a favorable vote. That could happen. Then again, getting this Congress to agree on what day it is might be a real challenge.

So here's my five-step remedy:

1)  Give incoming residents (or their proxies) the right to choose arbitration. At the top of the document in 1-inch high letters will be the following statement: “Important Legal Document: Read Carefully.”

2)  This must be the first document given to residents who are about to be admitted. No other document can be administered until the resident checks either the “I accept arbitration” or “I decline arbitration” box.

3)  Proxies must sign for residents with impaired cognition.

4)  Accepting arbitration must not be a condition of admission.

5)  But once it's signed, there's no going back. It's a done deal, regardless of who signs on behalf of the resident.

Is this a bit rough around the edges? Perhaps. And it can certainly be improved a bit. But it's a simple, fair and equitable solution. The alternative is continue a winner-take-all debate.

Care to guess which choice is more likely to prevail?

John O'Connor is McKnight's Editorial Director.

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Daily Editors' Notes

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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