Medicare and Medicaid New Final Rule

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Waaly Pearce

On Monday, July 16, the Centers for Medicare and Medicaid Services (CMS) issued a final rule that will once again allow nursing facilities to force residents to settle their disputes through arbitration and deny access to the courts. Taking away the ban on pre-dispute arbitration agreements deprives nursing facility residents of important rights and opens the door to the routine use and enforcement of arbitration agreements that a resident sign before knowing what the dispute is or what is at stake.

In 2016, CMS issued new nursing facility regulations that strengthened consumer protections for residents by prohibiting nursing homes from forcing residents to arbitrate disputes. This new final rule takes away most of these protections and will once again allow nursing facilities to ask residents to sign pre-dispute arbitration agreements at the time of admission. Although facilities will not be able to require residents to sign such agreements as a condition of admission under the final rule, the circumstances surrounding the admissions process combined with the enormous disparity of bargaining power means that most prospective residents are unaware of the content of what they are signing or the significance of the decision to enter into a pre-dispute arbitration agreement. In short, allowing facilities to ask residents to sign pre-dispute arbitration agreements is unfair to residents and their families and will harm their rights, safety, and quality of care.

In addition, CMS issued a proposed rule that would delay and roll back many other consumer protections finalized in the 2016 regulations. Justice in Aging will provide resources in the coming weeks to help advocates push back on these changes.

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