In an article by Professor Douglas A. Kahn published by the American Bar Association, Mr. Kahn contends that the increase in experiential learning in law schools is leading to a decrease in law student enrollment in core doctrinal classes, such as tax courses. According to Professor Kahn, only one-third of the students who recently graduated from Michigan Law School took a tax class, and less than 10% of those students took either partnership or corporate taxation.  Sadly, the situation at Michigan Law School is not unique.

Arbitration agreements are a touchy subject in any context, but particularly so in the emotionally charged, often distressed, situations surrounding entry into a long-term care (LTC) facility.

Anyone attempting to keep up with the flip-flop of positions on permitting or prohibiting arbitration clauses in LTC contracts is likely suffering from a severe case of whiplash. In the last three years, the validity of arbitration clauses has gone from silent, to prohibited, and soon they could become lawful. The future of LTC resident care hangs in the balance.

The Paradox

The executive branch’s position on arbitration clauses in LTC contracts has made a 180-degree turn in recent years. In 2016, the Centers for Medicare & Medicaid Services (CMS) banned pre-dispute arbitration agreements. In 2017, CMS issued proposed revisions eliminating the arbitration prohibition.

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