Centers for Medicare and Medicaid Services (CMS) Proposes New Regulation to Govern Nursing Home Arbitration Agreements
On July 16, 2015, CMS published in the Federal Register an exhaustive proposed rule on requirements for long-term care facilities. One of the proposed provisions concerns dispute resolution — specifically, binding arbitration agreements — at Sec. 483.70(n). The posted background on this topic provides, “We considered not proposing any requirements concerning binding arbitration agreements. We share stakeholders’ concern that some nursing homes may be requiring residents to sign agreements for binding arbitration as a requirement for admission into the facility. In addition, if the nursing home is not requiring the agreement as a condition of admission, some facilities may be requesting the resident to sign the agreement without fully explaining the rights the resident is waiving and the consequences of that waiver. We have proposed specific requirements if a nursing home chooses to request that a resident sign an agreement for binding arbitration. These requirements include, among other things, that the nursing home must explain the agreement to the resident in a form and manner that he or she understands, and that the resident acknowledge that they understand the agreement. We have also proposed specific requirements for the agreement, including that admission to the facility cannot be contingent upon the resident signing the agreement, the agreement must be entered into voluntarily, and the arbitration must be conducted by a neutral arbitrator in a venue convenient to both parties.
David Wingate is an elder law attorney practicing in Frederick and Montgomery Counties, Maryland. The elder law practice consists of wills, trusts, powers of attorneys, asset protection, and Medicaid planning.