On July 18, 2019, the U.S. Department of Health and Human Services Centers for Medicare & Medicaid Services (“CMS”) published its final rule regarding arbitration agreements in nursing home admission documents.
According to CMS, “This final rule amends the requirements that Long-Term Care (LTC) facilities must meet to participate in the Medicare and Medicaid programs. Specifically, we are repealing the prohibition on the use of pre-dispute, binding arbitration agreements. We are also strengthening the transparency of arbitration agreements and arbitration in LTC facilities. This final rule supports residents’ rights to make informed choices about important aspects of their health care.”
History Of Prior Requirements Regarding Nursing Home Arbitration Agreements
Prior to October 2016, the requirements for Long-Term Care (LTC) facilities to participate in the Medicare and Medicaid programs, found in 42 CFR part 483, contained no provisions specific to the use of pre-dispute, binding arbitration agreements between LTC facilities and their residents. On October 4, 2016, CMS published in the Federal Register a final rule entitled “Reform of Requirements for Long-Term Care Facilities” (81 FR 68688) (2016 final rule), that, among other revisions, established several requirements regarding the use of binding arbitration agreements by long-term care facilities, including prohibiting LTC facilities from entering into pre-dispute, binding arbitration agreements with any resident or his or her representative, or requiring that a resident sign an arbitration agreement as a condition of admission to the LTC facility.
The prior final rule also required that an agreement for postdispute binding arbitration be entered into by the resident voluntarily, that the parties agree on the selection of a neutral arbitrator, and that the arbitral venue be convenient to both parties. The arbitration agreement could be signed by another individual only if allowed by the relevant state’s law, if all of the other requirements in this section were met, and if that individual had no interest in the facility. Also, a resident’s right to continue to receive care at the facility post-dispute could not be contingent upon the resident or his or her representative signing an arbitration agreement. The arbitration agreement could not contain any language that prohibited or discouraged the resident or anyone else from communicating with federal, state, or local officials, including but not limited to, federal and state surveyors, other federal and state health department employees, and representatives of the Office of the State Long-Term Care Ombudsman.
On October 17, 2016, the American Health Care Association (AHCA) and a group of affiliated nursing homes filed a complaint in the United States District Court for the Northern District of Mississippi, Oxford Division seeking a preliminary and permanent injunction enjoining agency enforcement of the prohibition on pre-dispute, binding arbitration agreements, as provided in the regulation (§483.70(n)(1)). On November 7, 2016, the district court preliminarily enjoined enforcement of that regulation prohibiting the use of pre-dispute, binding arbitration agreements (Civil Action No. 3:16-CV-00233).
On June 8, 2017, CMS published in the Federal Register a proposed rule entitled “Revision of Requirements for Long-Term Care Facilities: Arbitration Agreements” (82 FR 26649) (2017 proposed rule). The 2017 proposed rule “would remove the provision prohibiting pre-dispute, binding arbitration agreements and strengthen requirements regarding the transparency of arbitration agreements in LTC facilities. The proposal would support the resident’s right to make informed choices about important aspects of his or her health care.”
The most recent final rule states: “As a result [of the over 1,000 comments received in response to the 2017 proposed rule concerning the changes to the requirements regarding arbitration], we have made some revisions to the proposed rule in response to public comments. Specifically, … we are finalizing our proposals to remove the requirement at §483.70(n)(1) precluding facilities from entering into pre-dispute, binding agreements for binding arbitration with any resident or his or her representative, and the provisions at §483.70(n)(2)(ii) regarding the terms of arbitration agreements. We are not finalizing the proposed removal of the provision at §483.70(n)(2)(iii) banning facilities from requiring that residents sign arbitration agreements as a condition of admission to a facility. Therefore, facilities will continue to be prohibited from requiring any resident or his or her representative to sign an agreement for binding arbitration as a condition of admission to the facility. In addition, to address commenters’ concerns that facilities may still coerce or intimidate the resident and his or her representative into signing the agreement, the facility must explicitly inform the resident or his or her representative that signing the agreement is not a condition of admission and ensure that this language is also in the agreement. We are finalizing provisions requiring that arbitration agreements be in a form and manner that the resident understands. However, we are not finalizing the proposed transparency related provisions that the facility must ensure that the agreement for binding arbitration is in “plain language” and that the facility post a notice regarding the use of agreements for binding arbitration in an area that is visible to residents and visitors. We are not finalizing the proposed removal of the provision specifying that a resident’s right to continue to receive care at the facility must not be contingent upon signing an arbitration agreement. Finally, based on comments, we are adding a requirement that facilities grant to residents a 30 calendar day period during which they may rescind their agreement to an arbitration agreement.”
CMS further stated, “This final rule does not purport to regulate the enforceability of any arbitration agreement, and, assuming that it limits the right of the Secretary to protect the rights of Medicaid beneficiaries, in our view, this rule does not pose any conflict with the language of the Federal Arbitration Act (FAA).”
If you or a loved one suffered injuries (or worse) while a resident of a nursing home in the United States due to nursing home neglect, nursing home negligence, nursing home abuse, nursing home understaffing, or the nursing home failing to properly care for a vulnerable adult, you should promptly find a nursing home claim lawyer in your state who may investigate your nursing home claim for you and file a nursing home claim on your behalf or behalf of your loved one, if appropriate.
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