In a letter dated August 7, 2017 addressed to the Centers for Medicare & Medicaid Services, Department of Health and Human Services, on the letterhead of the Maryland Attorney General and signed by the Attorneys General of 16 U.S. states and the Attorney General for the District of Columbia, the Attorneys General stated that they “strongly oppose the proposed rule that would reverse the regulation previously adopted on October 4, 2016, by the Centers for Medicare & Medicaid Services (CMS) prohibiting binding pre-dispute arbitration clauses in Long-Term Care facility contracts, set forth in 42 CFR $ 483.70(n).”
On October 14, 2015, sixteen Attorneys General submitted comments to CMS in support of prohibiting binding pre-dispute arbitration clauses in Long-Term Care facility contracts in which they stated, in part: “Pre-dispute binding arbitration agreements in general can be procedurally unfair to consumers, and can jeopardize one of the fundamental rights of Americans; the right to be heard and seek judicial redress for our claims. This is especially true when consumers are making the difficult decisions regarding the long-term care of loved ones. These contractual provisions may be neither voluntary nor readily understandable for most consumers. Often consumers do not recognize the significance of these provisions, if they are aware of them at all, especially in the context of requiring care in a nursing home.”
When CMS issued the regulation prohibiting pre-dispute arbitration clauses in long-term care facility agreements, it included a legal analysis in support of its authority to issue the rule and why it is not preempted by the Federal Arbitration Act that stated, in part: “These rules mandating that suppliers of health care items and services forgo contractual and other commercial rights they might otherwise have with respect to Medicare and Medicaid patients, evince a Congressional and administrative understanding that business arrangements with Medicare and Medicaid patients are not typical commercial contracts where both parties engage in arms-length bargaining. Given the unique circumstances of the LTC admissions process, coupled with the clear interest that Medicare and Medicaid have in protecting beneficiaries, a prohibition on the use of pre-dispute arbitration agreements is not by its nature outside the permissible realm of conditions a facility must meet if it wishes to receive payment under the Medicare and Medicaid programs.”
CMS subsequently proposed to repeal the new regulation, stating, in part: “we believe that arbitration agreements are, in fact, advantageous to both providers and beneficiaries because they allow for the expeditious resolution of claims without the costs and expense of litigation.”
Noting that the regulation adopted by CMS prohibits only prohibiting pre-dispute arbitration clauses and nothing in the rule prohibits the parties from choosing to resolve any dispute through arbitration if the parties agree that is the appropriate method for resolving the dispute at the time the dispute arises, the sixteen Attorneys General concluded their letter by stating, “We believe that the prohibition on pre-dispute arbitration clauses provides an important protection for the consumers of our States at a time when consumers are undertaking a difficult and emotional decision. Accordingly, for the reasons set forth more fully in the October 14, 2015 comments, we strongly urge CMS to reject the proposed repeal of the arbitration rule and to preserve this important protection for vulnerable consumers.”
If you or a loved one suffered injury, or worse, while a resident of a nursing home in the United States due to nursing home neglect, nursing home negligence, or nursing home abuse, you should promptly find a local nursing home claim lawyer in your U.S. state who may investigate your possible nursing home claim for you and file a nursing home claim on your behalf, if appropriate.
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