Monday, November 18, 2013
A number of years ago I attended a Philadelphia program on litigating personal injury disputes arising in long-term care. An interesting panel of attorneys on both sides of the disputes addressed what was then an emerging trend of state legislatures passing laws that barred or restricted enforcement of "mandatory arbitration" clauses included in nursing home admission agreements. At least one national trade group for nursing homes had actually adopted a policy against predispute mandatory provisions, responding to the public's perception of such clauses as "unfair."
Fast forward to February 2012, when the Supreme Court ruled that a West Virginia statute that barred pre-dispute mandatory arbitration provisions in nursing home contracts violated the Federal Arbitration Act. The brief, per curium ruling in Marmet Health Care Center, Inc. v. Brown, 132 S.Ct. 1201 (2012), was viewed as a setback for personal injury attorneys representing plaintiffs in personal injury cases.
Maryland Elder Law attorney Ron Landsman takes "A Second Look at Marmet Health Care Center: State Contract Law Provides Defenses to Nursing Home Contract Arbitration Clauses," his new piece for the NAELA Journal, going deeper into the implications of the Supreme Court's finding of federal preemption, as well as its remand for further findings on questions of unconscionability under the common law.
Ron points to the importance of careful planning by families prior to signing any nursing home agreement. His article highlights the role of attorneys, especially elder law specialists, in advising families of the potential significance of arbitration terms. He urges proper planning begins even earlier, when deciding how broadly to phrase powers of attorney or advance health care directives, and whether to give an agent the power to waive traditional litigation He concludes:
"Marmet leaves intact all of the state law approaches to attacking the formation of the contract, which gives the arbitration clause its power. Through a carefully drafted estate plan, thought about who signs at admission or after, Elder Law attorneys have a few options for maintaining their clients’ rights."