Senior living groups share arbitration concerns

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Argentum, formerly known as the Assisted Living Federation of America, and the American Seniors Housing Association are among the organizations that filed comments with the Centers for Medicare & Medicaid Services about a proposed rule that would revise the requirements that long-term care facilities must meet to participate in the Medicare and Medicaid programs.

The two organizations specifically remarked on part of the proposed rule that would limit the use of pre-dispute arbitration agreements in long-term care facilities, saying the action would "do much more harm than good."

Arbitration typically costs less than traditional litigation and can be faster and less burdensome to residents and long-term care facilities, Argentum President and CEO James Balda and ASHA President David Schless wrote in a letter dated Oct. 14 and posted to on Oct. 20. Further, "Restrictions on arbitration agreements would inappropriately limit and weaken the Federal Arbitration Act (FAA), which expressly recognizes the value of allowing dispute resolution outside the court system when both parties agree to do so," they said.

Fifteen state attorneys general, however, are calling on CMS to end use of the agreements because residents and their families often are unaware of the clauses' consequences until a dispute arises, and then they face a "take it or leave it" conundrum. And a coalition of consumer groups and lobbyists—among them the AARP and the National Consumer Voice for Quality Long-Term Care—say the agreements help providers “evade accountability.”

CMS first proposed the rule July 16, saying it would accept comments until Sept. 14, but the federal agency subsequently extended the comment period by 30 days. CMS received more than 8,400 comments by the Oct. 14 deadline.

LeadingAge and the American Health Care Association were among the other national organizations that submitted comments on various aspects of the proposed rule, and several state LeadingAge and AHCA groups as well as individual providers formally expressed concerns, too. AHCA said it was especially worried about the arbitration-related provisions in the proposed rule, although it also filed separate comments related to other aspects of the document.

AHCA encouraged members of the National Center for Assisted Living to submit comments as well because the rule could have indirect, negative implications for them if finalized as proposed.

Meg LaPorte, senior policy director for NCAL, expressed concerns with part of the proposed rule that would require a physician, physician assistant or clinical nurse specialist to quickly conduct an in-person evaluation of a resident before an unscheduled transfer to the hospital in cases that are not emergencies. The requirement, if included in the final rule, "will create a nightmare," she wrote in her letter, dated Oct. 4 and posted online Oct. 15.

The proposed rule unnecessarily would complicate and add expense to the process involved with unscheduled, non-emergency transfers, LaPorte wrote, because of the distance that many doctors would need to drive to visit a facility and the reality that many physicians serve multiple facilities. CMS should continue with its current approach, whereby RNs and physicians jointly determine the best approach to care, she said.


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