Choosing a nursing home involves decisions about care as well as the admission paperwork. Understanding an arbitration agreement gives your family one less uncertainty to carry into that decision.
You have a choice
A nursing facility participating in Medicare or Medicaid may offer an agreement for binding arbitration, subject to federal requirements. Signing cannot be a condition of admission or continued care. The facility must explain your right to decline, and the agreement itself must state that signing is optional for those purposes.
Arbitration places the covered dispute before a private decision-maker. Before agreeing, understand which disputes the document covers, who has authority to sign, the selection of the arbitrator, and the practical effect on your options.
Protections in the federal rules
The agreement must be explained in a form and language the resident or representative understands, with an acknowledgment of understanding. It must provide for a mutually agreed neutral arbitrator and a convenient venue. It must also expressly allow the resident or representative to rescind within 30 calendar days after signing.
An arbitration agreement cannot prohibit or discourage communication with government officials or the long-term care ombudsman. These protections allow families to ask questions and make a considered choice.
How the rule has developed
The earlier version of this article discussed a rule announced in 2016. The current federal framework permits qualifying arbitration agreements and protects the resident’s choice about signing. A family’s decision should follow the current rules and the actual agreement.
Read 42 C.F.R. section 483.70(m) and CMS guidance on nursing facility arbitration agreements for the governing requirements.