Rock, Paper, Scissors – Arbitration Clauses in Assisted Living Contracts

Many long-term care facilities must eliminate arbitration clauses from resident under a new federal rule.  The rule, which takes effect on November 28, 2016, only applies to facilities that accept Medicare and Medicaid.  However, additional facilities may experience pressure from consumers or state regulators to follow suit.

The new rule prohibits all pre-dispute binding arbitration agreements. It was adopted due to concern that individuals moving into senior housing or long-term care facilities may be especially vulnerable and therefore, might not read the “fine print” in their agreements or might not understand the ramifications of agreeing to arbitration.  Some people also were worried that the privacy of arbitration might help nursing homes and other facilities to keep disputes involving elder abuse and poor treatment from the public eye.

In reality, nursing homes and assisted living communities are already heavily regulated by the states.  Resident injuries and elder abuse must promptly be reported to the government.  Most licensed facilities also are required to report a host of other, less serious, incidents, including even accidental injuries in no way caused by the facility or its staff.

Regulators can and do review incident reports.  The state agency investigates reports of abuse and serious injury, and findings against the facility are public.  Consumers already are able to check on a facility’s regulatory record before moving in.

Even though the new rule prohibits pre-dispute agreements to binding arbitration, a senior or his/her family can still agree to arbitration after a dispute has arisen.  The new rule also does not impact pre-dispute agreements to non-binding arbitration and mediation, both of which can aid in resolving disputes short of litigation.

Once a dispute has arisen, there may be benefits to arbitration to both the consumer and the facility.  Arbitration can resolve a dispute more quickly than litigation, which may lead to a cost savings.  Frequently, arbitration permits selection of an arbitrator who is familiar with the industry and standards of care.  Relaxed evidence rules can make it easier to get helpful information in front of the decision-maker.   Further, the relative privacy provided by arbitration can be welcome not only to a facility but also to a senior or family members seeking to avoid public testimony about an emotional incident involving private medical concerns.

Although facility operators accepting government benefits must modify their resident agreements by November 28, that does not mean that facilities should not work with residents and their families to resolve disputes fairly short of litigation.  Likewise, consumers of long-term care services should keep in mind that there can be a significant financial and emotional cost to “having one’s day in court.”

The new rule may change the timing of agreements to binding arbitration.  However, once a dispute has come up, even though rock, paper, scissors might not be an option, the facility and the consumer still can and should consider negotiation, mediation, and arbitration before going to Court.

 

Disclaimer: The content of this blog is intended for informational purposes only. It is not intended to solicit business or to provide legal advice. Laws differ by state and jurisdiction. The information on this blog may not apply to every reader. You should not take any legal action based upon the information contained on this blog without first seeking professional counsel. Your use of the blog does not create an attorney-client relationship between you and Mirsky Law Group, LLC.

Employment Policies Cannot Prohibit Employees from Discussing their Wages with their Co-Workers

A new Maryland law went into effect on October 1, 2016 that prohibits employers from making pay decisions based upon an employee’s sex or gender indemnity.  In furtherance of the purpose of the newly enacted Maryland Equal Pay for Equal Work Act of 2016 (“Act”), an employer cannot restrict their employees from talking about their salaries.   In particular, an employer is not allowed to prohibit its employees from inquiring about, discussing, or disclosing their wages or the wages of any other employee.  Pursuant to the new law, any efforts by the employer to take an adverse action against an employee because he/she has exercised his/her rights to discuss wages and/or to inquire about his/her wages, is a violation of the Act.

However, the Act does allow the employer to take steps to protect the integrity of the work environment.  Specifically, an employer can institute a written policy that establishes reasonable workday limitations on the time, place, and manner for inquires about or the discussion of disclosure of employee wages but these limitations need to be consistent with standards adopted by the Commissioner of Labor and Industry and all other state and federal laws.

Now is the time to review employment policies to ensure compliance with the new Act.

For more information on Maryland’s new Equal Pay for Equal Work Act of 2016, please contact Scott A. Mirsky at (301) 664-7710 or samirsky@mirskylawgroup.com.

Disclaimer: The content of this blog is intended for informational purposes only. It is not intended to solicit business or to provide legal advice. Laws differ by state and jurisdiction. The information on this blog may not apply to every reader. You should not take any legal action based upon the information contained on this blog without first seeking professional counsel. Your use of the blog does not create an attorney-client relationship between you and Mirsky Law Group, LLC.

A “Savings Plan” for Your Records

It is a challenge to declutter and throw things away.  After all, we think that what now looks like clutter may be useful someday.

Just as a person might develop a hoarding disorder that interferes with his or her life, a company, also, can fall victim to keeping too many records too long so that they interfere with the company’s business.

Records can take over company offices and off-site storage locations when in paper form and can clutter up the company’s servers and cloud storage sites when in electronic form.  The company may find itself seeking to secure ever increasing record and data storage space to feed an insatiable need that all records be saved – or perhaps just a fear of discarding the wrong thing.

As important as it is that some records be kept, it is equally important that the business discard records on a timely basis.  Yet, when it comes time to clean up, both for individuals and business, the task can seem overwhelming – particularly without guidance about which items should be saved and which should be discarded.  It also is important that the company establish protocols about where and how documents should be saved.

The consequences of inadequate document retention practices can be significant. The news regularly reports data breaches caused when an employee saved private, unencrypted data on a laptop, only to have the laptop stolen, resulting in a costly and embarrassing privacy breach.

In one company without a Document Retention Plan (“DRP”), instead of saving records to the company’s cloud drive, some employees were saving their records to their individual office PC hard drives.  This lapse was discovered only after the PCs were replaced as a new computer system was implemented.  Unfortunately, this occurred during a government investigation.  The resulting penalties to the company far exceeded the cost it would have spent on the development and implementation of a DRP.

DRPs not “one size fits all”.  A business’ DRP should be customized not only to assure that the company complies with legal requirements but also to meet the practical needs of the industry and the business, itself.  For instance, some documents may be retained longer than legally required in order to adhere to industry standards, meet customer needs, or in anticipation of litigation.

A DRP also must address the fact that not all “documents” are in traditional written form.  Some company records may be stored electronically on company computers, in company cloud space, on company mobile devices, on flash drives, or even with company contractors.  Also, records can include audio and video, as well as the written word.

Adopting a DRP is only the first step, however.  Implementation and consistent application of the DRP at every level in the company is critical.  After adoption of a DRP, the company should select an individual document retention manager inside the company who is responsible for implementation and compliance with the DRP.

Using the company’s DRP as a guide, the document retention manager should develop storage systems both on-site and off-site as needed with a goal of minimizing both storage and retrieval costs.  Every employee, regardless of function, should receive training about the DRP and be enlisted to assist with DRP compliance on a daily basis.

Finally, the document retention manager should supervise regular compliance audits and retaining, to assure that the company operations conform to the DRP and that the DRP continues to meet the company’s needs.

A DRP won’t clean out your office or your storage unit for you, but it is a good business practice and can eliminate much of the stress and risk from the decision about when, where, how, and how long to save documents.

Elizabeth Whitman © 2016

Disclaimer: The content of this blog is intended for informational purposes only. It is not intended to solicit business or to provide legal advice. Laws differ by state and jurisdiction. The information on this blog may not apply to every reader. You should not take any legal action based upon the information contained on this blog without first seeking professional counsel. Your use of the blog does not create an attorney-client relationship between you and Mirsky Law Group, LLC.