Q: What kind of restrictions do we have regarding arbitration agreements as part of the admissions process?
A: Although the Centers for Medicare & Medicaid Services has recognized the benefits of arbitration, it has expressed apprehension that the “superior bargaining power” position of long-term care facilities could result in residents feeling coerced into signing arbitration agreements, and that the prevalence of pre-dispute arbitration agreements could be detrimental to residents’ safety.
The US Court of Appeals for the 8th Circuit upheld a CMS rule prohibiting LTC facilities from conditioning admission on signing a pre-dispute arbitration agreement. The rule also provided residents the right to rescind the binding arbitration agreement within 30 days of signing it and certain other rights.
In summary, CMS rules say that signing an arbitration agreement cannot be a condition of admission to, or a requirement to continue to receive care at, a facility. The provider must make this clear, and communicate in a suitable language to do so.
The parties must agree on a neutral arbitrator when the time comes for one, as well as a mutually convenient location.
The agreement must explicitly grant the resident/representative the right to rescind the agreement within 30 calendar days of signing it.
In addition, any arbitration agreement must not contain any language that prohibits or discourages the resident/representative from communicating with federal, state, or local officials, particularly agencies with oversight responsibilities for LTCs.
A copy of any signed agreement for binding arbitration between the parties must be retained by the facility for five years, and also be available for inspection.
Norris Cunningham, Esq, is a member at Stoll Keenon Ogden, PLLC. Send him your legal questions at [email protected].