The Centers for Medicare & Medicaid Services overturned a ban on skilled nursing operators using pre-dispute arbitration agreements with their residents in a final rule issued July 16, and a range of lawmakers reacted throughout the week.
The ban on arbitration agreements in long-term care was implemented by the Obama administration in 2016, to strong opposition from the American Health Care Association (AHCA), which sued CMS and the Department of Health and Human Services (HHS) when the initial ban took place.
The final rule issued July 16 lets SNFs use arbitration agreements, while preventing operators from using them as prerequisites for admission to a SNF. It also requires that providers inform their residents of their rights to pursue additional dispute resolution methods, as well as requiring them to allow residents a a 30-calendar day period in which they could rescind agreement to an arbitration agreement.
A range of lawmakers issued statements in response to the arbitration final rule in the days after it was finalized, gathered below:
U.S. Sen. Chuck Grassley, R-Iowa
“As with anything, there are pros and cons to arbitration. It can help parties resolve an issue without the high cost and delay of traditional litigation. We’ve all heard painful stories, and I think it’s worth Congress having more information on how these agreements are used in nursing homes. But if the government is going to prohibit certain contract provisions, there are legitimate questions that should be answered. For example, what impact would it have on the cost of and access to care, especially in rural areas? And does that increased cost just mean more money in lawyers’ pockets, instead of victims’?”
–provided to Skilled Nursing News via email
Statement from U.S. Rep. Linda T. Sánchez, D-Calif.
“The decision to transfer a parent or loved one to a long-term care facility is heart-wrenching. I still remember the day we moved my late father into a nursing home. My family and I were focused on the quality of care and range of services the facility would provide him. We were not focused on the language in the agreement that would limit his rights should something go wrong.
“The administration’s new rule does not put patients first. Under this CMS proposal, nursing home facilities would be able to again use binding arbitration to hide their malpractice and deny families their day in court. That’s why I will soon be reintroducing legislation to prohibit facilities from using pre-dispute arbitration agreements. We owe it to one of our most vulnerable groups in society, the elderly, to protect their legal rights.”
Joint statement from Sen. Ron Wyden, D-Ore., and Rep. Richard E. Neal, D-Mass.
“Seniors and their families should not have to sign away their legal rights to be admitted to the nursing home of their choice.
“The HHS Inspector General has found that one-third of Medicare beneficiaries experience harm within 35 days of entering a skilled nursing facility.
“It is clear that seniors need more consumer protections – not fewer.”
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“This rule is yet another extremely concerning Trump administration rollback of consumer protections. The administration’s finalization of this rule eliminates important protections for patients who suffer harm in nursing homes and other long-term care facilities. This change would allow nursing facilities to continue to use pre-dispute, binding arbitration agreement clauses at admission asking patients to sign away their legal rights in the event of harm or death.
Despite the final rule’s prohibition on requiring these agreements as a condition of admission, patients may still be coerced into signing away their rights given that many do not have a choice of provider and are vulnerable from suffering a medical condition or incident. These clauses stack the deck against patients and threaten access to safe and high-quality nursing home care.”