Final Rule Allows Pre-Dispute Arbitration Agreements

On the same day, CMS also released a final rule on Long-Term Care Facility Requirements allowing Arbitration Agreements (84 Fed. Reg. 34718).

The final arbitration rule reverses the ban on pre-dispute arbitration agreement mandated in the 2016 rules.  Permitting pre-dispute arbitration places consumers at a disadvantage during the admission process, usually a time of crisis and great stress for individuals and families; binds them to arbitration for any dispute – whether it be a financial issue or abuse or neglect; and strips consumers of their constitutional right to have their dispute heard by a jury. Asking individuals and their families to sign these binding agreements, prior to the advent of any disputes, is inherently unfair to consumers.

While the new rules permit facilities to ask residents and their representatives to sign arbitration agreements, they may not be required as a condition of admission or continuation of care.  Additionally, the rule requires the facility to ensure the resident or his or her representative understands the agreement, it must provide for an arbitrator and venue that both parties agree to; and includes the right to rescind an agreement within 30 days.

Even the strongest consumer protections, however, can’t negate the enormous stress consumers and their families feel during the admission process, and the  pressure they will continue to feel to sign such agreements because of fear they still might not be admitted or of consequences on future care if they don’t sign.

It is disappointing that the interests of providers were put over residents in the development of these rules.  From: The National Consumer Voice for Quality Long-Term Care – 1001 Connecticut Avenue, NW, Suite 632 – Washington, DC 20036 – telephone: (202) 332-2275 – info@theconsumervoice.org

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David Wingate is an estate planning and elder law attorney at Estate and Elder Planning by David Wingate. The Estate and Elder Planning office services clients with powers of attorneys, living wills, Wills, Trusts, Medicaid and asset protection. The Elder Law office has locations in Frederick, Washington and Montgomery Counties, Maryland.

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