The Centers for Medicare & Medicaid Services confirmed in a December 9 Survey & Certification Letter that it will not enforce the provision in the revised Requirements of Participation that prohibits nursing homes from using pre-dispute binding arbitration agreements, so long as there is a court-ordered injunction.
The CMS announcement explains:
- 42 CFR §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 Nov. 7, 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).
- CMS will not enforce 483.70(n)(1) until and unless the injunction is lifted.
- Surveyors must not survey facilities for compliance with this new provision until further notified.
The communication does not indicate whether CMS will appeal the existing court order, but it provides clarity for providers who currently use pre-dispute arbitration agreements.
December 28, 2016