By Holly Hayes Congress has mandated the adoption of electronic health records (EHR) and put billions of dollars behind the mandate. Hospitals and professionals interested in seeking these funds need to achieve “meaningful use” (MU) of electronic health records. The Centers for Medicare and Medicaid Services (CMS) states: The Medicare and Medicaid EHR incentive programs will provide incentive payments to eligible professionals and eligible hospitals as they adopt, implement, upgrade or demonstrate meaningful use of certified EHR technology. The programs begin in 2011. These incentive programs are designed to support providers in this period of Health IT transition and instill the use of EHRs in meaningful ways to help our nation to improve the quality, safety and efficiency of patient health care. The proposed Stage 1 criteria for meaningful use focus on electronically capturing health information in a coded format, using that information to track key clinical conditions, communicating that information for care coordination purposes, and initiating the reporting of clinical quality measures and public health information. Read more at the CMS website here. The American Hospital Association reported on a recent survey of hospital chief information officers (CIO) regarding the implementation of EHRs and their concern with the mandate: Eight in 10 hospital chief information officers surveyed by PricewaterhouseCoopers’ Health Research Institute said they are concerned or very concerned they will not be able to demonstrate “meaningful use” of electronic health records within the federally established deadline of 2015. “Without a set of final rules in place, lack of clarity around certain criteria and reporting requirements has left some CIOs at an impasse, and that’s why requesting files under HITECH is the best solution for these reporting. “Fueling the concern are availability of skilled IT resources, infrastructure requirements, vendor readiness, and effecting behavioral change across the organization. More than one-third of CIOs are concerned or very concerned about vendor readiness overall. In particular, 44% of CIOs said their Health Information Exchange (HIE) vendors are not prepared for MU implementation or are undecided.” The findings are based on a survey of 120 members of the College of Healthcare Information Management Executives. Last month, 53 organizations representing hospitals, physicians and other providers, including the AHA, called on CMS to revise its proposed rule defining “meaningful use” of EHRs. A final rule is expected out soon. Read more here. As the Patient Protection and Affordable Care Act is implemented, we will keep you updated on areas of potential conflict. We welcome any comments on the demonstration of “meaningful use” of EHRs. Holly Hayes is a mediator at Karl Bayer, Dispute Resolution Expert where she focuses on mediation of health care disputes. Holly holds a B.A. from Southern Methodist University and a Masters in Health Administration from Duke University. She can be reached at: holly@karlbayer.com.

On June 16, 2010, the National Labor Relations Board (NLRB) issued a Guideline Memorandum addressing the legal framework to use in employer’s mandatory arbitration policies. The Guideline Memorandum includes the following principles: (1) The concerted filing of a class action lawsuit or arbitral claim seeking to enforce employment statutes is protected by Section 7 of the Act, and if an employer threatens, disciplines or discharges an employee for such concerted activity, the employer violates Section 8(a)(l) of the NLRA. (2) Any mandatory arbitration agreement established by an employer may not be drafted using language so broad that a reasonable employee could read the agreement and/or related employer documents as conditioning employment on a waiver of Section 7 rights, such as joining with other employees to file a class action lawsuit to improve working conditions. (3) Nonetheless, an employer’s conditioning employment on an employee’s agreeing that the employee’s individual non-NLRA statutory employment claims will be resolved in an arbitral forum is permissible under the Supreme Court’s holding in Gilmer, supra. The validity of such individual employee forum waivers is normally determined under non-NLRA law, such as the Federal Arbitration Act and the employment statutes at issue. (4) So long as the wording of these individual forum waiver agreements makes clear to employees that their Section 7 rights are not waived and that they will not be retaliated against for concertedly challenging the validity of those agreements through class or collective actions seeking to enforce their employment rights, an employer does not violate Section 7 by seeking the enforcement of an individual employee’s lawful Gilmer agreement to have all his or her individual employment disputes resolved in arbitration. Similarly, an employer may lawfully seek to have a class action complaint dismissed on the ground that each purported class member is bound by his or her signing of a lawful Gilmer agreement/waiver. In sum, if mandatory arbitration agreements are drafted to make clear that the employees’ Section 7 rights to challenge those agreements through concerted activity are preserved and that only individual rights are waived, no issue cognizable under the NLRA is presented by an employer’s making and enforcing an individual employee’s agreement that his or her non-NLRA employment claims will be resolved through the employer’s mandatory arbitration system. In such cases, an employer is acting in accord with its rights under Gilmer and its progeny. Find the full text of the memorandum here. Technorati Tags: arbitration, ADR, law

The Texas Supreme Court held that a court abused its discretion when it refused to stay litigation that could moot arbitration of related claims in the same lawsuit. In re Merrill Lynch & Co., Inc. and Merrill Lynch, Pierce, Fenner & Smith Inc., No. 09-0161 (Tex. June 25, 2010) is similar to In re Merrill Lynch Trust Company FSB, 235 S.W.3d 185 (Tex. 2007). There, the court held that there are “many circumstances in which litigation must be abated to ensure that an issue two parties have agreed to arbitrate is not decided instead in collateral litigation.” Here, the court applied the same principle to hold that the trial court abused its discretion by refusing to stay the litigation related to one corporation, MetroPCS Communications, Inc., until the identical claims of its corporate affiliate, MetroPCS Wireless, Inc., are decided by arbitration or until Wireless is a member of a certified class action. Technorati Tags: ADR, law, arbitration

By Kent B. Scott and Cody W. Wilson Who Should I Bring to the Mediation? Client representatives. More is not better. The attorney and client should bring one or two employees who know the facts of the dispute. The problem is that often the employees most involved in a dispute have a vested interest in protecting their personal turf. Counsel and the client may have to decide how to handle an employee who was intimately involved in the dispute but has an agenda that doesn’t fit in with the client’s objectives for resolution. For example, this employee may be more interested in shifting responsibility for what happened to someone else. Experts. The attorney and client also need to decide whether an expert will be needed. Experts are usually needed only for highly technical or scientific disputes. They can be involved before or during the mediation or both. An expert can be retained before the mediation to help prepare the client and counsel for the mediation session. In certain technical disputes, the expert can also be retained to participate at the mediation. For example, the expert could deliver part or all of the client’s opening statement at the joint session. In addition, or alternatively, the expert could participate in private caucuses with the mediator in order to explain technical or scientific matters. Sometimes bringing an expert to the mediation can complicate matters by adding another layer of advocacy and taking the focus off finding potential solutions. Counsel should know whether the case requires an expert and the precise role the expert should play. The expert should be clearly advised of the limits of his or her role prior to the mediation. The client, meanwhile, should be aware that retaining an expert will raise the cost of mediation. Decision maker. It is essential to bring the client’s decision maker to the mediation. If there is more than one, they all should attend. If the client is insured, the adjuster must attend and have a supervisor available by phone in case additional settlement authority is needed. If the client is a public entity, a representative of the board or executive committee with valid authority should attend. Without a decision maker present for both sides, the potential for settlement drops dramatically. If the decision maker is not able to attend in person, that creates difficulties, but the case could still settle if the decision maker is available by phone. Take this mediation involving a designbuilder who was terminated from a renovation project by a school district. It made a claim for the value of unpaid work, termination costs and lost profits on the remaining work. The designbuilder and members of the school board attended the mediation. They reached a settlement, but it could not be implemented without the superintendent’s approval. But he did not attend because he was on vacation. He was located and the mediator conducted several caucus sessions via telephone with him and the members of the school board. As a result, the conflict was settled. In every mediation, counsel and the client’s decision maker should be fully prepared for the mediation and know the client’s strategy and objectives for the mediation. Part VIII of this series will discuss the day of the mediation. Stay tuned. [Ed. note: the contents of this post were first published on a different form in the May/July 2008 Edition of the AAA Dispute Resolution Journal.] Kent B. Scott is a shareholder in the law firm of Babcock Scott & Babcock in Salt Lake City whose practice focuses on the prevention and resolution of construction disputes. As a mediator and arbitrator, Mr. Scott currently serves on the AAA’s panel of mediators and the AAA’s Large Complex Construction Case Panel. He also serves on the arbitration and mediation panels for the U.S. District Courts (District of Utah), State District Court (Utah) and Utah Dispute Resolution. Mr. Scott is a founding member of the Dispute Resolution Section of the Utah Bar and a Trustee for the Utah Council on Conflict Resolution. Cody W. Wilson is an associate in the law firm of Babcock Scott & Babcock, concentrating his practice in the area of construction law, is licensed in all courts in the State of Utah, the U.S. District Court of Utah, the 10th Circuit Court of Appeals, the U.S. Court of Federal Claims and is a member of the ABA Forum on the Construction Industry. They can be reached at kent@babcockscott.com and cody@babcockscott.com.