NYT calls for ban on pre-dispute arbitration agreements

Clifton J. Porter II, SVP Government Relations, American Health Care Association
Clifton J. Porter II, SVP Government Relations, American Health Care Association

The New York Times has joined those arguing against pre-dispute arbitration clauses in nursing home contracts with a scathing editorial published Monday.

The opinion piece, written by the NYT editorial board, claims the Centers for Medicare & Medicaid Services' soon-to-be-finalized rule for nursing homes should have outright banned pre-dispute arbitration clauses.

Instead, the rule's provisions on arbitration “basically condone” the agreements as long as providers explain the clauses and don't make them a part of admission. Private arbitration should be allowed, the board clarified, “but only after a dispute arises.”

“Those provisions skirt the real problem,” the editorial claims. “Prospective patients do not have the necessary information to make a decision about signing the clauses. How could they before a dispute even arises?”

The editorial makes an argument against arbitration “that has been rejected across legal circles,” Clifton J. Porter II, director of government relations for the American Health Care Association, said in a statement to McKnight's. The nursing home mega-rule's arbitration provisions were among AHCA's chief policy concerns at the start of the year.

"Less than one-half of one percent of families will ever face a concern serious enough to enter arbitration.” Porter said.  “When they do, we want families and their loved ones to have a speedy process to resolution and to keep the awards of any judgment, not surrender them to trial attorneys.”

Families that choose arbitration don't receive substandard legal remedies, Porter noted — laws are in place that allow courts to toss out “unconscionable” arbitration agreements.

“Caring for a loved one in our centers is a calling based on mutual trust, respect, and attentive quality,” he said. “Arbitration ensures the best protections while fostering those lifelong relationships."

The NYT editorial urged the White House Office of Management and Budget to ask for revisions to the rule's arbitration provisions during its review “if nursing home regulators won't impose one.” The rule is slated for finalization in September.

Senators, state representatives, state attorneys and consumer advocacy groups have all called for an end to pre-dispute arbitration clauses in recent months.