Providers disappointed with final rule's 'unnecessary' arbitration ban

The Centers for Medicare & Medicaid Services' newly released final rule for long-term care is a whopping 713 pages, but one provision in particular has earned more backlash from provider groups than any other.

Effective Nov. 28, 2016 — in less than two months, in other words — the rule prohibits the use of all binding pre-dispute arbitration clauses in nursing home admission agreements. Providers have long pushed back against the possibility that CMS would prohibit the use of pre-dispute arbitration, saying the agency doesn't have the authority to make such a call.

Both the American Health Care Association and LeadingAge expressed disappointment in the arbitration ban in statements provided to McKnight's.

“That provision clearly exceeds CMS's statutory authority and is wholly unnecessary to protect residents' health and safety,” said Mark Parkinson, president and CEO of AHCA.

LeadingAge has supported arbitration agreements that are “properly structured and allow parties to have a speedy and cost-effective alternative to traditional litigation,” but believes CMS has overstepped its boundaries with the ban, the group said.

“Arbitration agreements should be enforced if they were executed separately from the admission agreement, were not a condition of admissions, and allowed the resident to rescind the agreement within a reasonable time frame,” LeadingAge added in its statement.

Other provisions of the rule, as well as the amount of staff training and additional costs the new regulations will require to implement, raised concerns among provider groups.

The new regulations “promise close to” $700 million in addition costs “with no new funding,” tweeted AHCA/NCAL Vice President Greg Crist on Thursday afternoon. “That will have an impact on providers.”

“Many of the requirements are reasonable when looked at individually but taken as a whole, these requirements represent a significant burden to the nursing facility provider to implement,” added Cynthia Morton, MPA, executive vice president of the National Association for the Support of Long-Term Care, in a statement to McKnight's. “The sheer volume of requirements is overwhelming.”

The final rule's requirement for facility-wide assessments could especially be detrimental for providers, LeadingAge added.

“While we support the concept of aligning staff levels and expertise with the needs of the residents, rather than looking at fixed staffing levels, we remain concerned that we have yet to fully understand what this assessment will include and how CMS will use it for assessing quality of care,” said Cheryl Phillips, M.D., senior vice president of public policy and health services for LeadingAge.

Despite the initial backlash against the rule, providers should be encouraged by its  provisions to foster person-centered care, and the fact that the final version left out proposed regulations such as a required in-person evaluation by a clinician before non-emergency transfers and minimum staffing requirements, the groups said.

But others, including Diane Carter, MSN, RN, RAC-CT, DNS-CT, FAAN, president and CEO of the American Association of Directors of Nursing Services, were less relieved about the rule's stance on nursing staffing.

“We had some concerns about staffing and that it was not well-defined. There needs to be an RN in a facility 24 hours a day,” Carter told McKnight's at AADNS' inaugural conference. “That's not to diminish the role of an LPN, who is critical, and we are perfectly open to waivers or telemedicine. But there is a pile of research that says an RN is needed in the building.

The long-term care lobbyists also applauded CMS' plan to implement the rule in staggered phases, and said they plan to take a deeper dive to determine the final rule's impact on providers as the Nov. 28 effective date approaches.

“It seems like [the rule] formalizes what many facilities are already doing, and takes it to the next level,” Morton said. “They seem to have a good intent, but they'll take up a lot of time and resources.”