Harmony Healthcare Blog

Arbitration Agreements: Proposed Rule

Posted by Kris Mastrangelo, OTR/L, LNHA, MBA on Wed, Jun 07, 2017

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Edited by Kris Mastrangelo


Compliance • Audits/Analysis • Reimbursement/Regulatory • Education/Efficiency

agreements.jpgIn the Fall of 2016, the Requirements of Participation (RoP) included a ruling that caused a significant amount of concern within the Skilled Nursing industry.  The rule 

"prevented facilities from entering into pre-dispute arbitration agreements with any resident or his or her representative or requiring that a resident sign an arbitration agreement a as condition of admission to the LTC facility." 

Before the 2016 Rule, the government was mute on this subject matter. After a chain of events eloquently described in the 20-page download, a policy change is underway with the intent 

"to create a better balance between the advantages and disadvantages of pre-dispute arbitration for residents and providers." 

The Proposed Rule discusses: 

  1. Provisions to protect the resident/representative via:
    • User-Friendly, understandable language verbally and in writing.
    • If binding agreement a condition of admission, it must be in plain language.
    • If binding agreement a condition of admission, it must be posted for the public to view in the spirit of transparency.
    • Allows the admission to freely speak with Governmental Agencies (versus discouraging them).
    • The admission must acknowledge an understanding of the agreement.
    • All copies of signed documents and actions must be maintained by the Facility.
Advanced Notice of Proposed Rulemaking
  1. Pros of refining the rule of arbitrations agreements:
    • Disputes resolved through arbitration can be less costly than engaging legal teams.
    • Disputes resolved through arbitration can be faster than engaging legal teams.
    • Arbitrations may be less adversarial.
  2. Cons of keeping the historical arbitrations agreements rules:
    • Confusion when signing the documents, i.e., complicated for the resident or family to understand.
    • Restricted access of governmental input.
    • Restricted alternatives for the resident within the throes of unanticipated situations.
  3. The Point
    • Upon reconsideration, CMS feels that a ban on pre-dispute arbitration agreements is not the appropriate policy for all residents. 

These conversations and discussions are all good. It appears that the proposal will meet the needs of both parties.  Public comments are solicited for the next 60 days.

Join in if you have ideas and thoughts that will help improve the system.

Harmony Healthcare International (HHI) is available to assist with any questions or concerns that you may have.  You can contact us by clicking here.  Looking to train your staff?  Join us in person at one of our our upcoming Competency/Certification Courses.  Click here to see the dates and locations. 

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Tags: proposed rule, Requirements of Participation

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