CMS Confirms: SNFs May Use Pre-Dispute Arbitration as Long as Injunction In Place

In a recent Survey & Certification Letter, CMS stated the following:

On September 28, 2016, the Federal Register posted the notice of the CMS final rule Reform of Requirements for Long-Term Care Facilities. The rule was published in the Federal Register on October 4, 2016, and became effective on November 28, 2016.

The published final rule revises the requirements that LTC facilities must meet to participate in the Medicare and Medicaid programs. One of the new requirements at 42 C.F.R. §483.70(n)(1) prohibits nursing homes receiving Medicare or Medicaid funds from entering into pre-dispute binding arbitration agreements with any resident or resident’s representative nor require that a resident sign an arbitration agreement as a condition of admission to the nursing home.

On November 7, 2016, the United States District Court for the Northern District of Mississippi, Oxford Division (Civil Action No. 3:16-CV-00233), issued an order preliminarily enjoining CMS from enforcing section 483.70(n)(1). At this time, CMS will not enforce 483.70(n)(1) until and unless the injunction is lifted. As such, surveyors must not survey facilities for compliance with this new provision until further notified.