Arbitration Agreement Long Term Care

In July 2019, CMS adopted a revised final rule for 2019 at 84 Fed. Reg. 34718, which makes some changes to the proposed revised rule, but maintains the lifting of the basic prohibition on arbitration agreements before any litigation for long-term healthcare facilities. It is significant that the final rule maintains important provisions of the 2016 rule “which prohibits institutions from requiring residents to sign arbitration agreements as a condition of admission to an institution” or from “specifying that a resident`s right to continue to care shall not depend on the signing of an arbitration agreement.” The 2019 Final Rule also modifies, to some extent, the transparency requirements proposed in the proposed 2017 Rule. When a loved one enters a long-term care home, it is often a time of turbulence. There may have been a catastrophic medical event. Or the resident feels overwhelmed by the move. Regardless of the circumstances that lead to the transition, families are often stressed. Next, families have to deal with the flood of paperwork at the facility. What are the terms of the agreement? What kind of care does the resident receive? Who pays for the care? During this period, families are often subject to an arbitration agreement. In this article, we will discuss what an arbitration agreement is, how to influence the signatory at a later stage, and some of the new rules that will soon emerge regarding its use by long-term care facilities. The Centers for Medicare & Medicaid Services (CMS) last month passed a final rule stating that arbitration agreements are allowed in long-term care communities receiving federal funding, but there`s a catch: CMS has imposed more burdensome mandates than those required by federal and state laws that, have long favoured arbitration as a fair place to settle disputes.

A federal district court has launched CMS`s latest attempt to impose arbitration-related regulatory obligations on long-term care communities, different from those imposed by law on all other companies, many of which have used arbitration agreements for decades as a more efficient, efficient and less stressful place for dispute resolution. And the courts may well crack down on the recent CMS attempt. Until they do, long-term care providers will likely be able to enforce arbitration agreements that comply with federal and state laws, but may face regulatory penalties from CMS if they fail to comply with the stricter rules of the new rule. Therefore, if you don`t want to take this risk, you may need to make adjustments to your arbitration agreement and offer process before September 16, 2019, until the courts can determine the legality of the new CMS rule. Talk to your lawyer to make sure your arbitration agreement complies with the law…

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