CELJ Comments on Proposed Regulatory Revision Allowing Arbitration Agreements

The Centers for Medicare and Medicaid Services (CMS) issued new nursing facility regulations in September 2016, which included consumer protections for residents, which prohibit nursing homes from forcing residents to arbitrate disputes.


CMS has now proposed to roll back these protections to permit nursing facilities to require residents to sign pre-dispute arbitration agreements before being admitted. CMS is accepting comments on this proposed rule. CELJ attorney Lindsay Heckler submitted a comment explaining how the rule would harm residents’ rights, safety, and quality of care.


“The majority of nursing home admissions come from hospitals and potential residents/family are often left with little time to investigate options and/or do not have the ability to wait for an opening at a nursing home of choice. This is in large part due to reimbursement restrictions and policies that are imposed on potential residents by CMS and private health insurance companies. In addition, there are many practical decisions made in admissions decisions such as: proximity to family, cost and imminent discharge from a hospital. As a result, the resident is unable to bargain the terms of admission, in regards to the pre-arbitration clause or otherwise.


Enabling nursing homes to make pre-arbitration agreements a condition of admission further restricts potential resident choice. Even with the proposed transparency provisions, such provisions are meaningless as they do not negate the fact they harm nursing home residents and remove what little choice nursing home residents have in choosing a facility. It does not matter if the resident and family representative understand what a pre-arbitration agreement entails if the resident has no ability to refuse to sign it.”


To read her full comment, click here.
To submit your own feedback electronically, go to www.regulations.gov.  Within the search bar, enter the Regulation Identifier Number associated with this regulation –
0938–AT18 – and then click on the “Comment Now” box. All comments are due by August 7th, 2017 at 5pm.

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