New Regulations for Binding Pre-Dispute Arbitration Agreements with Long-Term Care Residents
In 2016, the Centers for Medicare and Medicaid Services (CMS) issued regulations that prohibited long-term care facilities from entering into pre-dispute arbitration agreements with residents and their families. Shortly thereafter, those regulations were successfully challenged in federal court, and CMS has not attempted to enforce them.
On July 18, 2019, CMS issued a final rule that will formally rescind the ban on pre-dispute arbitration agreements with long-term care residents. On September 16, 2019, amendments to 42 C.F.R. § 483.70(n) take effect that permit long-term care facilities to enter into binding pre-dispute arbitration agreements as long as they meet certain requirements. These requirements are:
The final rule adopting these changes to 42 C.F.R. § 483.70(n) can be accessed at https://www.govinfo.gov/content/pkg/FR-2019-07-18/pdf/2019-14945.pdf.
Long-term care facilities that wish to enter into binding arbitration agreements with residents should ensure that their arbitration agreements and the procedures for presenting them to residents and their representatives and retaining them comply with the new requirements.
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