Clarification of the revised arbitration rules for nursing homes continues to emerge after the proposed 2016 Final Rule was challenged in court. On June 29, 2022, the Quality, Safety, and Oversight Group at CMS issued a new memorandum focusing on surveyor guidance which included arbitration agreements. The memo stated that surveyors will begin using the guidance on October 24, 2022, to issue citations. This should give providers the confidence to either move forward with implementing or continuing to use, binding arbitration agreements.

This guidance reaffirms the new requirements for binding arbitration agreements that CMS finalized in July 2019 and became effective September 16, 2019. To prepare for the upcoming enforcement, providers should become familiar with the final requirements and have a plan regarding the implementation of arbitration agreements as well as responding to surveyors’ inquiries.

The final rule requires providers to:

• Not condition care or admission to the facility upon the signing
• The facility must explicitly (i.e., verbally) tell the resident and/or the resident’s representative that signing is not a condition of admission or receiving care
• The language of the agreement must be in a form and manner that the resident and/or the residents’ personal representative understand
• The resident and/or the resident’s representative must acknowledge an understanding of the agreement
• Within the agreement, it must clearly state that the agreement can be revoked within 30 calendar days
• Verbally reinforce the 30-day revocation period provision
• Not included in the agreement is any language that would prohibit or discourage the resident or anyone on the resident’s behalf from contacting or communicating with federal, state or local officials such as state surveyors, health department employees, or representatives of the Ombudsman’s office
• Keep for 5 years any signed arbitration agreement and all final arbitration decisions to make available for inspection
• Submit to the selection of a neutral arbitrator agreed to by both parties
• Submit to the venue location for the arbitration that is convenient to both parties

Providers should pay close attention to any allegations resolved through arbitration and ensure its QAPI Committee reviews the care provided. Surveyors will be allowed to review the arbitration decisions as well as anything relating to the issues raised in that dispute, such as requesting the admission packet and care records. As noted in the July 18, 2019, Federal Register, “Surveyors can then incorporate problems identified through arbitration into the current survey in order to determine if the LTC facility has taken steps to prevent the problem from reoccurring.” This suggests that citations may be possible for any suspected or actual repeat issues.