BREAKING: CMS final rule allows arbitration agreements, proposes one-year delay of 3rd phase of Requirements of Participation

Notice to Nursing Home Operators: New CMS rule continues to allow pre-dispute arbitration agreement; however, such agreements can NOT be a prerequisite to admission to the facility.   In addition, the nursing home must notify the resident or the resident’s representative that entering into the arbitration agreement is VOLUNTARY.   If you have any questions, please call or email our office: (813) 907-0500 or

By James M. Berklan, McKnights Long Term Care News

The Centers for Medicare & Medication Services dropped a pair of bombshell announcements concerning nursing homes late Tuesday afternoon, including a proposal to delay implementation of parts of phase three of the Requirements of Participation one year until November 28, 2020.

The agency also issued a final rule allowing pre-dispute arbitration agreements, but it will prohibit nursing homes from requiring residents to sign them as a condition for receiving care. It also will require providers to inform residents or their representatives that they do not have to sign a binding arbitration agreement.

CMS estimated that Tuesday’s announcements, made under the administration’s “Patients Over Paperwork” campaign, would save nursing home operators $616 million annually in administrative costs.

With regard to arbitration agreements, CMS also prohibited conditions that would prevent residents or others from communicating with federal, state or local officials.

Officials said in a statement issued late Tuesday that the one-year RoP implementation delay has been proposed “to avoid confusion and promote transparency” with regard to certain phase three Quality Assurance Performance Improvement plan (QAPI) and compliance and ethics related requirements. Other key elements of the third phase that would appear to be on track for implementation on Thanksgiving Day include the inclusion of an infection control preventionist on staff. CMS said that “unnecessary” provisions of the QAPI mandate will be dropped.

The history of binding arbitration agreements has been checkered. In October 2016, the Obama administration banned their use in long-term care facilities, but a legal challenge and subsequent injunction forestalled that effort. Then, in June 2017, under a new administration, CMS proposed a rule that would remove the ban and sought public comment. Long-term care providers are strongly in favor of arbitration agreements, which they say result in quicker resolution times at lower costs.

The rules are part of the agency’s five-part approach at fine-tuning long-term care oversight, which, which Administrator Seema Verma announced in April.  

More on the proposed and final rules can be found here. Comments will be collected on the proposed rule until September 16 and may be submitted to at

McKnight’s will continue coverage of these evolving stories.