CMS Proposes to Revise Arbitration Agreement Ban
The Centers for Medicare and Medicaid Services (CMS) has reconsidered the approach to arbitration agreements contained in the Reform of Requirements for Long-Term Care Facilities Final Rule published in October 2016. The Rule, which made significant updates to the Federal Requirements of Participation in the Medicare program for nursing homes, prohibited pre-dispute arbitration agreements. The prohibition was challenged in federal court, which issued a preliminary injunction preventing enforcement of that provision.
CMS dropped its appeal of the court ruling and has now published a proposed rule that revises their previous approach. Specifically, the newly proposed rule would:
- remove the prohibition on pre-dispute arbitration agreements;
- require that any arbitration agreement be in plain writing and be contained in the admissions contract if it is a condition of admission into the facility;
- mandate that the agreement be explained to the resident and their representative in a form and manner they understand, including a language they understand;
- require that the resident acknowledge that they understand the agreement;
- ensure that the agreement does not contain any language prohibiting or discouraging communication with federal, state, or local officials, including representatives of the State Long-Term Care Ombudsman;
- require a facility to retain for CMS inspection a copy of the signed agreement for binding arbitration and the arbitrator’s final decision if the facility resolves a dispute with a resident through arbitration; and
- mandate that the facility post a notice regarding its use of binding arbitration in an area that is visible to both residents and visitors.
CMS indicates that these proposed revisions would help strengthen transparency in the arbitration process, reduce unnecessary provider burden, and support residents’ rights to make informed decisions about important aspects of their health care. The rule is scheduled to be published in the June 8th Federal Register, with comments due by Aug. 7, 2017. A copy is available here. LeadingAge NY and LeadingAge National are reviewing the proposed rule and soliciting feedback from members, and will submit comments on the rule.
Contact: Darius Kirstein, dkirstein@leadginageny.org, 518-867-8841