Long-Term Care Regulation - Enforcement of Rule Prohibiting Use of Pre-dispute Binding Arbitration Agreements is Suspended

PUBLISHED: Dec 15, 2016

The Centers for Medicare & Medicaid Services (CMS) will not enforce the new rule prohibiting skilled nursing facilities, nursing facilities and dually-certified facilities from using pre-dispute binding arbitration agreements while there is a court-ordered injunction in place prohibiting enforcement of this provision.

On September 28, 2016, the Federal Register posted the notice of the Centers for Medicare and Medicaid Services (CMS) final rule Reform of Requirements for Long-Term Care Facilities. The rule was published in the Federal Register on October 4, 2016, and became effective on November 28, 2016. The published final rule revises the requirements that LTC facilities must meet in order to participate in the Medicare and Medicaid programs. One of the new requirements, 42 C.F.R. §483.70(n)(1), prohibits nursing homes receiving Medicare or Medicaid funds from entering into pre-dispute binding arbitration agreements with any resident or resident’s representative nor require that a resident sign an arbitration agreement as a condition of admission to the nursing home.

On November 7, 2016, the United States District Court for the Northern District of Mississippi, Oxford Division (Civil Action No. 3:16-CV-00233), issued an order preliminarily enjoining CMS from enforcing section 483.70(n)(1).

At this time, CMS will not enforce 483.70(n)(1) until and unless the injunction is lifted. As such, surveyors will not survey facilities for compliance with this new provision until further notified.

StayAlert! is monitoring this topic and will publish additional information as it becomes available.

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