Recently, the Kitch firm provided updates regarding the Centers for Medicare & Medicaid Services’ (CMS) position on arbitration agreements related to enforceability in long term care facilities, as well as the benefits of arbitration overall.

On July 16, 2019, CMS filed a final rule on the subject. With this final rule, CMS confirmed our previous guidance regarding the use of pre-dispute, binding arbitration agreements and provided additional details for providers to meet CMS’ goal of strengthening transparency of arbitration agreements and the arbitration process in long term care.

The highlights of the final rule are as follows:

Providers must not require any resident or his/her representative to sign an agreement for binding arbitration as a condition of admission to, or as a requirement to continue to receive care at a facility.
Providers must explain and explicitly state in their agreement that the resident or his/her representative has a right not to sign the agreement.
Providers must ensure that their agreement is explained in a form, manner, and language that the resident and his/her representative understands.
The resident or his/her representative must acknowledge that he/she understands the agreement.
The agreement must provide for the selection of a neutral arbitrator, agreed upon by both parties, and a venue convenient for both parties.
The resident or his/her representative must have a 30-day rescission period.
The agreement may not contain any language prohibiting or discouraging a resident or anyone else from communicating with federal, state, or local officials, including employees of federal and state health departments or representatives of the Office of the State Long-Term Care Ombudsman.
A copy of the signed agreement and the arbitrator’s final decision, should a matter be arbitrated, must be retained by the provider for 5 years after the resolution of the dispute and be available for inspection by CMS or its designee.

This final rule goes into effect on September 16, 2019. Being that this rule is included in participation requirements for the Medicare and Medicaid programs, providers must review and revise their arbitration policy and agreements as necessary to comply with this final rule. For providers that are considering arbitration, you now have CMS-sanctioned steps to follow as you implement arbitration agreements and your process. We, at the Kitch Firm, are available to support your revision and implementation efforts to comply with these new requirements. For assistance, please contact John Paul Hessburg, Kally Goodwin-Ratzloff, Keyur Shah, or any other member of the Kitch Post-Acute Care Team.

CMS Confirms Arbitration is Alive and Well

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