The Feds have a new rule [Rule text] barring the use of pre-dispute arbitration agreements with patients in long-term care facilities that participate in Medicare and Medicaid programs. There are almost 1.5 million patients in such facilities.
Update 11/08/2016: A federal district court issued a preliminary injunction barring enforcement of the rule. American Health Care Association v. Burwell (ND Miss 11/07/2016) [Opinion text] [My comments on this decision] .
The new rule by the Centers for Medicare & Medicaid Services takes effect on November 28, 2016. It prohibits entering into pre-dispute arbitration agreements, and prohibits requiring signing an arbitration agreement as a condition of admission. The rule does permit facilities to ask for an arbitration agreement after a dispute arises, but this is subject to a number of requirements.
It's really not clear to me what happens to all the pre-dispute arbitration agreements that patients have already signed.
Here is the text of 42 CFR 483.70(n) Binding arbitration agreements.
(1) A facility must not enter into a pre-dispute agreement for binding arbitration with any resident or resident's representative nor require that a resident sign an arbitration agreement as a condition of admission to the LTC facility.
(2) If, after a dispute between the facility and a resident arises, and a facility chooses to ask a resident or his or her representative to enter into an agreement for binding arbitration, the facility must comply with all of the requirements in this section.
(i) The facility must ensure that:
(A) The agreement is explained to the resident and their representative in a form and manner that he or she understands, including in a language the resident and their representative understands, and
(B) The resident acknowledges that he or she understands the agreement.
(ii) The agreement must:
(A) Be entered into by the resident voluntarily.
(B) Provide for the selection of a neutral arbitrator agreed upon by both parties.
(C) Provide for selection of a venue convenient to both parties.
(iii) A resident's continuing right to remain in the facility must not be contingent upon the resident or the resident's representative signing a binding arbitration agreement.
(iv) The agreement must 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, in accordance with § 483.10(k).
(v) The agreement may be signed by another individual if:
(A) Allowed by state law;
(B) All of the requirements in this section are met; and
(C) That individual has no interest in the facility.
(vi) When the facility and a resident resolve a dispute with 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 and be available for inspection upon request by CMS or its designee.