Monday, June 5, 2017
I'm just going to start off with my opinion on this latest action by CMS: bummer. Now I'll tell you what CMS is doing and you can decide if you agree with their course of action, or not. As you may recall, last fall CMS issued the revised nursing home regs (which we've blogged about before-you can search the archives for them, if you want). One of the regs getting a lot of attention was the reg that prohibited the use of pre-dispute arbitration clauses in nursing home admission contracts. Now CMS has announced they are reversing course. They will no longer prohibit pre-dispute arbitration clauses under the proposed amendment to the rule. Instead the proposed rule allows the use of arbitration clauses if certain notice requirements are met. The summary explains that CMS
would revise the requirements that Long-Term Care (LTC) facilities must meet to participate in the Medicare and Medicaid programs. Specifically, it would remove provisions prohibiting binding pre-dispute arbitration and strengthen requirements regarding the transparency of arbitration agreements in LTC facilities. This proposal would support the resident’s right to make informed choices about important aspects of his or her health care. In addition, this proposal is consistent with [CMS] approach to eliminating unnecessary burden on providers.
The specific amendments to 42 C.F.R. 483.70(n) appear on pages 20-21 of the notice. The notice is scheduled to be published in the Federal Register on June 8 and the comment period closes 60 days thereafter.