CMS Proposes To Revise Arbitration Agreement Requirements for Long-Term Care Facilities

The Centers for Medicare & Medicaid Services (CMS) published a proposed rule in the Federal Register on June 8, 2017 revising the requirements for the use of arbitration agreements in long-term care facilities. The proposed rule reverses the ban on pre-dispute binding arbitration agreements contained in the October, 2016 Reform of Requirements of Long-Term Care Facilities Final Rule. CMS states the proposed arbitration 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 CMS proposed rule includes the following provisions:

• The prohibition on pre-dispute binding arbitration agreements is removed.

• All agreements for binding arbitration must be in plain language.

• If signing the agreement for binding arbitration is a condition of admission into the facility, the language of the agreement must be in plain writing and in the admissions contract.

• The agreement must be explained to the resident and his or her representative in a form and manner they understand, including in a language they understand.

• The resident must acknowledge that he or she understands the agreement.

• The agreement must not contain any language that prohibits or discourages the resident or anyone else from communicating with federal, state, or local officials, including federal and state surveyors, other federal or state health department employees, or representatives of the State Long-Term Care Ombudsman.

• If a facility resolves a dispute with a resident through arbitration, it must retain a copy of the signed agreement for binding arbitration and the arbitrator’s final decision so it can be inspected by CMS or its designee.

• The facility must post a notice regarding its use of binding arbitration in an area that is visible to both residents and visitors.

LeadingAge is reviewing the proposed rule and soliciting feedback from members. LeadingAge will submit comments to the rule. Comments are due to CMS on August 7. Leadingage asks that all comments from members that are not sent directly to CMS be forwarded to Jennifer Hilliard by August 1, 2017.

Additional information regarding the proposed rule is available on the CMS website.