AHCA/NCAL is pleased that on June 5 the Centers for Medicare and Medicaid Services (CMS) issued proposed revisions to the current arbitration agreement requirements for long term care facilities that eliminate the ban on nursing care facilities entering into pre-dispute arbitration agreements with their residents (that ban has not taken effect because of the preliminary injunction entered by the federal court in the lawsuit brought by AHCA challenging the ban).

AHCA is reviewing the other provisions in the rule. Specifically, the proposed rule:

• Removes the prohibition on pre-dispute binding arbitration agreements;
• Requires agreements for binding arbitration agreements to be in plain language;
• If signing the agreement for binding arbitration is a condition of admission into the facility, requires that the language of the agreement must be in plain writing and in the admissions contract;
• Requires that the agreement must be explained to the resident and his or her representative in a form and manner they understand, including a language they understand;
• Requires the resident to acknowledge that he or she understands the agreement;
• Prohibits the inclusion of 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, requires the facility to 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; and
• Requires the facility to post a notice regarding its use of binding arbitration in an area that is visible to both residents and visitors.

AHCA will be reviewing the new requirements proposed in the rule and listening to feedback from members.

AHCA will be submitting comments by the deadline of 60 days after the proposed rule is published in the Federal Register. For a summary of the proposed rule, see CMS fact sheet.

Please contact Dianne De La Mare, AHCA Vice President of Legal Affairs, with any questions.