Skilled Nursing Facilities (“SNFs”) are required to use the California Standard Admission Agreement (SAA), located on the California Department of Public Health website.

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CAHF's legal counsel has also developed a revised 2022 Model Arbitration Agreement for your use.

COMPLETE SAA PACKAGE WITH ATTACHMENTS

CAHF 2022 REVISED MODEL ARBITRATION AGREEMENT  (Updated: 10/27/22)

On July 18, 2019, CMS finalized new requirements related to binding arbitration agreements that went into effect on September 16, 2019. As with longstanding California law, the new requirements prohibit LTC facilities from requiring residents to sign binding arbitration agreements as a condition of admission to the facility, or as a requirement to continue to receive care at that facility. As of September 16, 2019, your practices and arbitration agreements must comply with 2019 CMS Final Arbitration Rule requirements. Agreements entered into before September 16, 2019 are still valid.

On June 29th, 2022 CMS issued QSO-22-19-NH.  Among other things, this release highlighted the regulation issued regarding pre-dispute binding regulation [483.70(n)] in 2019 and includes extensive surveyor guidance at F847 and F848 at pp. 680-695. The QSO also references that compliance with the regulation will begin to be surveyed as of October 24, 2022. The guidance addresses various provisions that must be included in arbitration agreements as well as the requirement that facilities make available such agreements to surveyors along with arbitrator’s decisions in matters covered by their agreements.

CAHF has revised the model arbitration agreement for use by skilled nursing facilities to reflect changes in CMS surveyor guidance issued in June 2022 related to the 2019 federal regulation regarding pre-dispute binding arbitration. 

These elements were discussed with the CAHF Government Relations Legal Subcommittee and with an arbitration workgroup from the Subcommittee focusing on what changes might need to be made to the CAHF model template. Along with CAHF Legal Counsel, the Subcommittee periodically reviews the model for changes in the law and best practices. CAHF had previously updated the agreement in 2019 following the issuance of the regulation and this revision follows the issuance of the guidance issued on June 29th.

The revised 2022 CAHF Model Arbitration Agreement was developed by CAHF Legal Counsel and incorporates input from the arbitration workgroup. CAHF suggests that members carefully review the regulation and guidance and consult with their legal advisors regarding the arbitration agreements being utilized as well as the current process employed to present such agreements.

The 2019 Final Rule states that the arbitration:

·       Cannot be a condition of admission or continued care. [42 C.F.R. § 483.70(n)(1)]

·       Must explicitly state signing is not required to receive care. [Section 483.70(n)(4)]
Is similar to California state law.

There are seven new requirements under the 2019 New CMS Final Arbitration Rule:

New Explanation Requirement - The facility must ensure that “the agreement is explained to the resident and his or her representative in a form and manner that he or she understands, including in a language the resident and his or her representative understands.” 

New Acknowledgement Requirement - The facility must ensure that “the resident or his or her representative acknowledges that he or she understands the agreement.”

New Neutral Arbitrator Requirement - The facility must ensure that “the agreement provides for the selection of a neutral arbitrator agreed upon by both parties.”

New Convenient Location Requirement - The facility must ensure that “the agreement provides for the selection of a venue that is convenient to both parties.”

New 30-day Rescission Requirement - “The agreement must explicitly grant the resident or his or her representative the right to rescind the agreement within 30 calendar days of signing it.” This is similar to California law.

New No Communication Restrictions - The agreement may not contain any language that prohibits or discourages the resident or anyone else from communicating with federal, state, or local officials, including but not limited to, federal and state surveyors, other federal or state health department employees, and representatives of the Office of the State Long-Term Care Ombudsman...” 

New Document Retention Requirement - “When the facility and a resident resolve a dispute through arbitration, a copy of the signed agreement for binding arbitration and the arbitrator’s final decision must be retained by the facility for 5 years after the resolution of that dispute on [sic] and be available for inspection upon request by CMS or its designee.” 

Additional Resources

CAHF webinar: “The New CMS Arbitration Rule: Changes and Implications” presented by CAHF Legal Counsel Mark Reagan is available on-demand. 

CMS memo: Revised Long-Term Care Surveyor Guidance – QSO-22-19 NH (2022)

California Department of Public Health: AFL 15-17-1 (2015) “Revision for Skilled Nursing and Intermediate Care Facilities Arbitration Agreements”