Senator Al Franken (D-MN)


Long-term care consumer advocates and lawmakers heightened complaints Monday about the Centers for Medicare & Medicaid Services’ plan to allow binding arbitration clauses in nursing home contracts, as the open comment period on the proposal came to a close.

CMS issued proposed revisions to long-term care providers’ requirements of participation in June that would allow pre-dispute binding arbitration agreements. But they would be permitted only on the condition that they’re written in plain language, and explained thoroughly and understood by residents and families. That same week, the agency also dropped its appeal of a lawsuit between it and the American Health Care Association over an Obama-era final rule that banned pre-dispute arbitration entirely.

On Monday a group of 31 senators submitted their comments on the proposal, urging CMS Administrator Seema Vera to rethink reversing the rule and instead enforce the ban.

“Forced arbitration clauses in nursing home agreements stack the deck against residents and their families who face a wide range of potential harms, including physical abuse and neglect, sexual assault, and even wrongful death at the hands of those working in and managing long-term care facilities,” the senators, including vocal arbitration opponent Sen. Al Franken (D-MN), wrote.

The lawmakers also expressed concerns that the Trump administration’s proposal would fail to provide resident protections, override existing state laws, go against regulations that prevent nursing homes from using the agreements as a requirement for residency, and undermine CMS’ final requirements of participations.

“If nursing homes can use forced arbitration to cover up widespread wrongdoing and avoid public scrutiny, CMS and state regulators will be unable to ensure compliance with newly-established requirements, particularly those aimed at preventing elder abuse,” the letter reads.

A similar message also was shared by the Fair Arbitration Now Coalition, a group of consumer and health groups that joined together against the ban’s reversal. In their comments, nearly 40 organizations bashed binding arbitration as a “secretive rigged system controlled by the at-fault facility.”

“In 2016, CMS finalized a sensible and fully-supported rule banning forced arbitration clauses in LTC contracts,” the coalition said. “There is absolutely no reason to undo the agency’s careful work to develop this final rule.”

Additional consumer groups, including Public Citizen, the Long Term Care Community Coalition and AARP, also submitted comments ahead of the Aug. 7 deadline.