Nursing Home Arbitration Provisions and ACA Proposed Rules Banner Image

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Nursing Home Arbitration Provisions and ACA Proposed Rules

January 20, 2023

For more information about this blog post, please contact Khaled J. KleleRyan M. MageeRyan L. O’NeillConnor BrezaWilliam R. Meiselas or Labinot Alexander Berlajolli.

CMS Revised Long-Term Care Surveyor Guidance In Effect

Centers for Medicare and Medicaid Services (“CMS”) issued revised long-term care surveyor guidance to help assess noncompliance with arbitration agreements used by long-term care facilities which took effect on October 24, 2022.  CMS revised the guidance in Chapter 5 and related exhibits of the State Operations Manual ("SOM") to strengthen the oversight of complaints and facility-reported incidents ("FRIs") and further revised its guidance for all Medicare-certified provider/supplier types to improve consistency across the State agencies in their communication to complainants. CMS provided guidance related to arbitration agreements, which prohibits 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.

Long-term care facilities could face penalties from surveyors and civil monetary penalties for noncompliance with these arbitration rules. In 2021, the Eighth U.S. Circuit Court of Appeals decided Northport Health Services of Arkansas, LLC et al v. U.S. Department of Health and Human Services, No. 20-1799 (8th Cir. Oct. 1, 2021), which had ruled that long-term care facilities must fully explain any arbitration agreements to their residents to be eligible for reimbursement from federal payors including Medicaid and Medicare.

CMS Issues HHS Notice of Benefit and Payment Parameters for 2024 Proposed Rule

CMS announced the U.S. Department of Health and Human Services’ (“HHS”) Notice of Benefit and Payment Parameters for the 2024 Proposed Rule. Through this rule, CMS proposed standards for issuers and health insurance marketplaces, as well as requirements for agents, brokers, web-brokers, and assisters that help consumers with enrollment through marketplaces that use the Federal Affordable Care Act (“ACA”) platform. This proposed rule aims to expand access to care for low-income and medically underserved consumers, strengthen the health insurance market, bolster program integrity, and make it easier to enroll in ACA plans.

Among other things, CMS proposes that beginning January 1, 2024, ACA marketplaces will have the option to implement a new special rule for consumers losing Medicaid or Children’s Health Insurance Program ("CHIP") coverage that is also considered minimum essential coverage, and additionally proposes to establish two additional major “essential community provider” categories for Plan Year 2024 and beyond: 1) Mental Health Facilities and 2) Substance Use Disorder Treatment Centers. CMS also proposes changes to the ACA standardized plan options and standalone dental plans.

CMS issued a Fact Sheet on the proposed rule.

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