Upheld by the Centers for Medicare & Medicaid Services under the Trump Administration, according to reports, the ban on nursing home arbitration clauses has been lifted. CMS Issued the ‘Proposed Revision Requirements for Long-Term Care Facilities’ Arbitration Agreements on its website.
Obama-era regulation previously stopped nursing homes from forcing patients and their families to sign binding arbitration agreements, effectively waiving their right to take the facility to court, as a condition of admission. The rule was ensure improvements to the quality of care, help strengthen transparency in the arbitration process, reduce unnecessary provider burden, i.e. hospital readmissions processes, and support residents’ rights to make informed decisions about important aspects of their health care.
The White House Office of Management and Budget held a meeting last month regarding proposals on lifting the ban, the agency and attendees debated on whether arbitration or litigation should be used to resolve disputes.
The ban began with the American Health Care Association filing motions against Department of Health and Human Services Secretary Sylvia Mathews Burwell. This resulted in a halt of the ban on arbitration agreements while the U.S. District Court for the Northern District of Mississippi debated the “serious legal questions” regarding the issue. The AHCA, who called the initial ban an over reach and satisfied with CMS decision to lift it, according to reports.
Proposed Revisions to Arbitration Requirements
This proposed rule focuses on the transparency surrounding the arbitration process and includes the following proposals:
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 that it must be 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.