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How can we use arbitration agreements?

Columnist Norris Cunnigham discusses infection control penalties.



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Norris Cunningham

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 recognized the benefits of arbitration, they expressed concern that the “superior bargaining power” position of long-term care facilities could lead residents to feel compelled to sign arbitration agreements, and that the appearance of prior -dispute arbitration agreements can be detrimental to residents’ safety.

The US Court of Appeals for the 8th Circuit upheld a CMS rule that prohibits LTC facilities from conditioning admission on signing a pre-dispute arbitration agreement. The rule also gave residents the right to revoke the binding arbitration agreement within 30 days of signing it and certain other rights.

In summary, CMS rules state that signing an arbitration agreement cannot be a condition of admission to, or a requirement for continuing to receive care at, a facility. The supplier must make this clear and communicate in an appropriate 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 expressly grant the resident/representative the right to revoke 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 ltcnews@mcknights.com.

From the November 2022 issue of McKnight’s Long-Term Care News

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