CMS Finalizes Reversal Of Arbitration Ban In Nursing Homes, Proposes Partial Phase 3 RoP Delay

July 16, 2019, Alex Spanko, Skilled Nursing News - The federal government on Tuesday finalized a rule that allows skilled nursing operators to use arbitration agreements with their residents, while also proposing a new rule to reduce paperwork burdens that would delay certain aspects of the Requirements of Participation.

The Centers for Medicare & Medicaid Services (CMS) struck something of a compromise with the new arbitration rule, preventing operators from using them as a prerequisite for admission, while also requiring providers to inform residents of their rights to pursue additional methods of dispute resolution.

CMS will also prevent operators from including arbitration language that bans residents or their families from contacting federal, state, and local authorities.

Arbitration in nursing homes has been a hot-button issue on the federal level, banned in 2016 by the Obama administration but then reinstated amid an injunction and legal disputes.  The next year, the newly inaugurated Trump administration issued a proposed rule that would formally reverse the ban, a rule that became final Tuesday.

“The CMS proposal supports patients and their caregivers by removing the ban on binding arbitration agreements while requiring nursing homes to ensure residents have the ability to choose the method of dispute resolution they want,” the agency wrote in a statement announcing the rule change.

The separate proposed rule, meanwhile, would seek to reduce reporting and paperwork burdens by bringing about a host of changes — including a key delay on certain aspects of the third phase of the new Requirements of Participation (RoP), set to take effect this coming November.

Among the changes, CMS floated the idea of reducing the frequency of facility assessments, eliminating certain prescriptive requirements from the Quality Assurance Program Improvement (QAPI) initiative, and easing the requirements for staffers that can serve as compliance and ethics officers at nursing homes.

“The Trump administration is helping nursing homes provide high-quality care by allowing them to focus their time and resources on residents — not unnecessary process and outdated regulations,” CMS administrator Seema Verma said in a statement.  “We know our regulations work best when they are smart, targeted, and patient-focused, so we have taken a close look at our rules with patients and burden in mind.   We’ve identified opportunities for reducing provider burden while maintaining high quality resident care.”

Should this rule become final, operators would have an extra year to prepare for certain aspects of the third RoP phase, specifically related to the QAPI program and ethics requirements.

All told, the government expects that SNFs will save $616 million annually under the new regulations.

“We believe that these changes would save time and resources for LTC facilities so they may focus on caring for residents,” the agency wrote.

Providers have until September 16 to leave comments on the rule, which remains a proposal until finalized by CMS.