Legislative Update:  CMS Finalizes Long-term Care Provider Rules Including Prohibition on Mandatory Arbitration Clauses in Provider Contracts


As the first comprehensive update since 1991, CMS has finalized its overhaul of provider rules which it claims "are targeted at reducing unnecessary hospital readmissions and infections, improving the quality of care, and strengthening safety measures for residents in these facilities."  CMS received nearly 10,000 public comments in finalizing this rule which will impact all Medicare or Medicaid, certified facilities and requires the implementation of a number of important safeguards and consumer protective measures. Key changes finalized in this rule include:

  • Prohibiting the use of pre-dispute binding, mandatory arbitration agreements; voluntary arbitration agreements are not prohibited.
  • Altered training requirements for long-term care facility staff members caring for residents with dementia.
  • Higher staffing regulations .Changes to care-planning Ensuring that long-term care facilities take into consideration the health of residents when making decisions on the kinds and levels of staffing a facility needs to properly take care of its residents.
  • Ensuring that staff members have the right skill sets and competencies to provide person-centered care to residents. The care plans developed for residents will take into consideration their goals of care and preferences.
  • Improved care planning oversight, including discharge planning for all residents with involvement of the facility’s interdisciplinary team and consideration of the caregiver’s capacity, giving residents information they need for follow-up after discharge, and ensuring that instructions are transmitted to any receiving facilities or services.
  •  Allowing dietitians and therapy providers the authority to write orders in their areas of expertise when a physician delegates the responsibility and state licensing laws allow.
  • Updates to the long-term care facility’s infection prevention and control program, including requiring an infection prevention and control officer and an antibiotic stewardship program that includes antibiotic use protocols and a system to monitor antibiotic use.

Critics have questioned whether CMS is out of touch with the day-to-day issues providers face and has overstepped its authority in promulgating certain parts of the rule, including with respect to the mandatory arbitration clause prohibition.    Some supporters view the rule as a necessary set of changes to protect consumers and will improve public perception of long-term care providers.

Read more about the changes CMA has implemented here.