New Guidance for Arbitration

The Centers for Medicare & Medicaid Services’ 2019 rule prohibits nursing homes from forcing residents to sign binding arbitration agreements as a condition of admission to the facility, or as a requirement to continue receiving care. Today is the day surveyors will begin using new guidance to check for compliance since the rule’s Sept. 16, 2019 effective date.

The guidance creates two new tags, F847 Enter into Binding Arbitration Agreements and F848 Select Arbitrator/Venue, Retention of Agreements. To avoid violations, facility staff must explain arbitration. They must ensure that the agreement is explained in a “manner that he or she understands, including in a language the resident and his or her representative understands.” They must explicitly inform a resident of their right to refuse an arbitration agreement. The agreements must grant residents 30 days to rescind agreements.

A 2016 Obama administration decision banned mandatory arbitration agreements in admission paperwork in long-term care facilities. That decision was correct. Hopefully, CMS will implement a ban in the future.