Critics of Plan to Reinstate SNF Arbitration Agreements Attack Trump, CMS

As the deadline for public comment approached, politicians and advocacy groups lodged strong objections to the Trump administration’s proposal to overturn Obama-era regulations that protect residents’ ability to sue skilled nursing facilities.

The Centers for Medicare & Medicaid Services (CMS) issued a rule in 2016 that prevents SNFs that receive Medicare or Medicaid funds from including “no sue” clauses in resident contracts, curtailing their ability to use arbitration as a dispute resolution tactic.

The American Health Care Association (AHCA) and a group of skilled nursing facilities sued CMS and the Department and Health and Human Services in October, arguing that the rule overstepped federal authority.


Now, the Trump administration supports overturning the regulation, and objectors made their voices heard ahead of Monday’s public-comment deadline — including Rep. Ted Lieu, a California Democrat.

Public Citizen, a national non-profit organization that represents the public interest through lobbying, litigation, administrative advocacy, research, and public education, released a statement objecting to the proposal to overturn the rule.

“Taking protections away from vulnerable residents — protections that are critical to fostering accountability by [long-term care providers] — would be a shameful setback for the rule of law and for elderly protection,” Public Citizen stated in the release. “We urge you not to eliminate these critical protections, and instead allow implementation of the rule to move forward.”

AHCA e-mailed Skilled Nursing News a fact sheet that outlines its position in support of overturning the rule. The sheet cites the Federal Arbitration Act of 1925, which AHCA says CMS violates with the rule.

“CMS does not have the statutory authority to either ban arbitration agreements in skilled nursing care centers, or to propose arbitration agreements in skilled nursing care centers, or to propose arbitration requirements,” the sheet from AHCA states.

AHCA also argues in its fact sheet that “arbitration is fair and equitable” and that it has lower costs for patients, nursing centers and the health care systems as compared to litigation.

“Dollar amounts of damage awards are not limited in arbitration, except where required by state law,” the fact sheet states.

Written by Elizabeth Jakaitis

Photo credit: “President of the United States Donald Trump speaking at the 2017 Conservative Political Action Conference (CPAC) in National Harbor, Maryland” by Gage Skidmore, CC BY-SA 2.0

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