On July 18, 2019, CMS finalized new requirements related to binding arbitration agreements that went into effect on September 16, 2019. The requirements prohibit LTC facilities from requiring residents to sign binding arbitration agreements as a condition of admission to the facility, or as a requirement to continue to receive care at that facility. The arbitration guidance also addresses other requirements, such as allowing residents to choose a neutral arbitrator, and the obligation for facilities to make the final arbitrator’s decision available for review by CMS or its designee.

On June 29, 2022 CMS issued QSO-22-19-NH, which outlines revisions to the Arbitration Agreement Requirements, along with updated surveyor guidance for some Phase 2 and all Phase 3 Requirements of Participation. In the updated guidance, the arbitration agreement requirements were divided into two new F-tags, F847 and F848 and surveyor guidance was provided regarding this regulation’s meaning and intended enforcement. The guidance applies to arbitration agreements entered on or after Sept. 19, 2019.

F847 implements the regulation’s prohibition against making entry into an arbitration agreement a condition of admission or continued stay in the facility, as well as the regulation’s requirement regarding a facility’s obligation to explain the agreement to a resident or their representative, the requirement that a facility obtain an acknowledgement of such understanding by the resident or their representative, the requirement that such an agreement provide a 30-day right of rescission, and the prohibition against including any language in the agreement that prohibits or discourages the resident or anyone else from communicating with government officials. The intent of this requirement is to ensure that facilities inform residents or their representatives of the nature and implications of any proposed arbitration agreement in order to inform their decision on whether to enter into such agreements. For example, the new tag states that facilities should take every step to meet the resident’s needs (e.g., literacy level and language proficiency). The new tag also addresses those instances in which an arbitration agreement is included within a larger document such as an admissions agreement.

F848 implements the regulation’s requirements that arbitration agreements provide for the selection of a neutral arbitrator and a convenient venue, as well as the requirement that when a dispute is resolved through arbitration, the facility must retain a signed copy of the agreement for binding arbitration and the arbitrator’s final decision for 5 years after the resolution of the dispute. In addition, the agreement must be available for inspection upon request by CMS or its designee.

To learn more about the new guidance regarding arbitration agreements please join us on September 22, 2022, for the next session in the Unpacking the RoP Interpretive Guidance webinar series. Learn more and register

Contact Proactive for assistance in ensuring survey readiness in the area of Arbitration Agreements and all other RoP updates effective October 24, 2022.

 

Shelly Maffia, MSN, MBA, RN, LNHA, QCP, CHC, CLNC
Director of Regulatory Services

Learn more about the rest of the Proactive team.