On June 21, 2010, the U.S. Supreme Court decided Rent-A-Center, West v. Jackson. The question presented was: Is the district court required in all cases to determine claims that an arbitration agreement subject to the Federal Arbitration Act (”FAA”) is unconscionable, even when the parties to the contract have clearly and unmistakably assigned this “gateway” issue to the arbitrator for decision? We thought you would like to read some interesting commentary about the opinion: Rent-a-Center, West, Inc, v. Jackson: US Supreme Court Decision Applies to Both Domestic and International Arenas, DLA Piper, June 23. Rent-A-Center, West, Inc. v. Jackson and the Ongoing Assault on Party Autonomy, JamesM. Gaitis, Disputing, June 23. Professor Alan Scott Rau Comments on Rent-A-Center, West Inc. v. Jackson, Alan Scott Rau, Disputing, June 22. New rule for deciding validity of agreements to arbitrate arbitration, Scotus Blog, June 21. Victory for Business in Rent-A-Center West v. Jackson, ADR Prof, June 21. Today’s arbitration decision in Rent-A-Center v. Jackson, PrawfsBlawg, June 21. Technorati Tags: law, ADR, arbitration

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