AHCA/NCAL 'cautiously optimistic' about arbitration outcome

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Clifton Porter II
Clifton Porter II

A rule proposed by the Centers for Medicare & Medicaid Services that in part would limit the use of pre-dispute arbitration agreements in skilled nursing facilities and would affect assisted living communities as well “created the absolute most angst amongst our members” in 2015, Clifton Porter II, head of government affairs for the American Health Care Association/National Center for Assisted Living, told members of the press in a Jan. 11 call. Porter, however, added that he remains “cautiously optimistic” that CMS is considering member concerns before issuing a final rule.

“Arbitration is an important remedy and one that we do not want compromised because it provides our patients the ability to get and ascertain expedited awards if there is an issue or concern that arises related to patient care,” he said. The organization is working with other groups that would be affected by the rule, “because arbitration on a broad scale remains a concern not just in healthcare but obviously in other areas as well,” Porter added. “We're going to be working with other groups to coordinate our efforts to ensure that the arbitration provisions in the Federal Arbitration Act itself are not compromised.”

The limitations were part of a proposed rule that also would revise other requirements that long-term care facilities must meet to participate in the Medicare and Medicaid programs. In 2015, AHCA had encouraged NCAL members to submit comments about the rule, saying that it could have indirect, negative implications for assisted living communities if finalized as proposed. Insurers base their rates on whether an assisted living provider uses arbitration agreements, AHCA said at the time, so changes in the use of the agreements in SNFs would affect rates and accessibility to assisted living providers.

Argentum, formerly known as the Assisted Living Federation of America, and the American Seniors Housing Association were among the organizations that filed comments with CMS by the extended Oct. 14 deadline. Leaders of the two organizations remarked that pre-dispute arbitration agreements help resolve disagreements sooner and with less burden and cost to residents and communities, among other benefits.

Although AHCA will be working on members' behalf on issues related to observation stays, the IMPACT Act, payment reform and quality, 2016 should be a relatively calm year for long-term care operators, legislatively speaking, Porter said in the Jan. 11 press call. “History would tell us that the legislative agenda during a presidential election year is usually less ambitious,” he said. “That being the case, we are remaining vigilant, but we're cautiously optimistic that they're aren't going to be any major initiatives that present a significant threat to our sector.”

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