An arbitration agreement is a contract that says all parties agree to resolve any disputes out of court, through a process called arbitration. In post-acute care, the regulations clearly state that an arbitration agreement cannot be buried or hidden, and it must be clearly reviewed/explained to the resident and/or their LEGAL representative.  

As with pretty much any regulations in post-acute care there are specific guidelines that must be adhered to including: 

• Not condition care or admission to the facility upon the signing 
• The facility must explicitly (i.e., verbally) tell the resident and/or the resident’s representative that signing is not a condition of admission or receiving care 
• The language of the agreement must be in a form and manner that the resident and/or the residents’ personal representative understand 
• The resident and/or the resident’s representative must acknowledge an understanding of the agreement 
• The agreement cannot be “buried” in an admission packet; recommend a stand alone document 
• If using “tablets” or other electronic devices for signatures, consider including signature/initialing areas at each of the key elements (i.e., not required for admission, 30-day revocation period, etc.) 
• Within the agreement, it must clearly state that the agreement can be revoked within 30 calendar days
• Verbally reinforce the 30-day revocation period provision 
• Not included in the agreement is any language that would prohibit or discourage the resident or anyone on the resident’s behalf from contacting or communicating with federal, state or local officials such as state surveyors, health department employees, or representatives of the Ombudsman’s office 
• Keep for 5 years any signed arbitration agreement and all final arbitration decisions to make available for inspection 
• Submit to the selection of a neutral arbitrator agreed to by both parties 
• Submit to the venue location for the arbitration that is convenient to both parties 

Arbitration agreements are usually favored over going to trial as disputes are usually resolved quicker, it saves time and money, and the resident/family don’t have the strain and stress of going to court. A win/win! Is it time for you to consider using arbitration agreements? If so, please feel free to access the resources available at HealthCap’s Resource and Education Center. Stay well and stay informed! 

HealthCap Resource and Education Center Resources:

• Arbitration Toolkit (includes state specific regulations)
• Podcast – Arbitration Agreements
• Podcast – Arbitration Agreements – How and Why
• Voluntary Binding Arbitration Agreement
• Voluntary Binding Arbitration Agreement Policy
• Facility’s Process for Introducing, Discussing, and Signing Binding Arbitration Agreements
• Facility Binding Arbitration Agreement Checklist
• DOs and DON’Ts for Drafting Binding Arbitration Agreements
• Best Practices for Drafting Arbitration Agreements