CMS SOM App. PP, Tag F846

The facility must have in place policies and procedures to ensure that the

administrator’s duties and responsibilities involve providing the appropriate notices

in the event of a facility closure, as required at paragraph (l) of this section.

GUIDANCE §483.70(l)

Policies and procedures must be in place at all times in order to be used in the case of a

facility closure or in case of termination of a facility’s Medicare and/or Medicaid

Provider Agreement, in order to meet the requirements of §483.70(k) The policies and

procedures must address:

• The administrator’s duties and responsibilities as required per §483.70(k) for

submitting a closure plan and providing timely written notice to the State Survey

Agency, the State LTC Ombudsman, residents of the facility, and the legal

representatives of residents or other responsible parties, including the CMS

Location, the State Medicaid Agency, and staff responsible for providing care and

services to residents;

• How facility staff will identify available settings in terms of quality, services, and

location, by taking into consideration each resident’s individual needs, choices,

and best interests. The facility may not close until all residents are transferred,

relocated or discharged in a safe and orderly manner to the most appropriate

setting; and

• Assurance that no new residents will be admitted to the facility on or after the

date that the written notice of impending closure was provided to the State Survey

Agency;

To ensure resident safety during a facility closure or termination of a facility’s Medicare

and/or Medicaid Provider Agreement, the policies and procedures should also address:

• How facility staff will ensure that all pertinent information about each resident is

communicated to the receiving provider in accordance with §483.15(c)(2)(iii),

and each resident’s complete medical record information including archived files,

Minimum Data Set (MDS) assessments, and all orders, recommendations or

guidelines from the resident’s attending physician;

• In addition to the administrator, the primary contact(s) responsible for the daily

operation and management of the facility during the facility’s closure process;

• The roles and responsibilities of the facility’s owners, administrator, or their

replacement(s) or temporary managers/monitors during the closure process, and

their contact information;

• Provisions for ongoing operations and management of the facility and its residents

and staff during the closure process that include:

o Payment of salaries and expenses to staff, vendors, contractors, etc.;

o Continuation of appropriate staffing and resources to meet the needs of each

resident, including the provision of medications, services, supplies, and

treatments as ordered by the resident’s physician/practitioner;

o Ongoing accounting, maintenance, and reporting of resident personal funds;

and

o Labeling, safekeeping and appropriate transfer of resident’s personal

belongings, such as clothing, medications, furnishings, etc. at the time of

transfer or relocation, including contact information for missing items after

the facility has closed.

The facility’s policies and procedures should also consider certain provisions to prepare

residents to ensure a safe and orderly transfer from the facility. These provisions include,

but are not limited to:

• Interviewing residents and their legal or other responsible parties, to determine

each resident’s goals, preferences, and needs in planning for the services,

location, and setting to which they will be moved;

• Offering each resident (in a manner and language understood by the resident) the

opportunity to obtain information regarding their community options, including

setting and location;

• Providing residents with information or access to information pertaining to the

quality of the providers and/or services they are considering; psychological

preparation or counseling of each resident as necessary; and

• Making every reasonable effort to accommodate each resident’s goals,

preferences and needs regarding receipt of services, location, and setting.

PROCEDURES §483.70(l)

Once notified of a facility’s impending closure, if a copy of the facility’s plan for the

transfer and relocation of the residents was not included with the notice, the State Survey

Agency should immediately request a copy of the facility’s closure plan for their review

and approval. In addition, the State Survey Agency should request the facility’s

admissions records to verify that no new residents have been admitted on or after the date

that the notice of closure was provided.

A resident who had been temporarily transferred to an acute care setting, is on bed hold,

or is on a temporary leave would not be considered to be a new admission upon return to

the facility. However, each of these situations may need to be evaluated on a case by

case basis in order to determine if the clinical care or social needs of the resident may

continue to be met by the facility if transferred back to the facility in closure. If it is

determined that the clinical care or social needs of the resident cannot be met by the

closing facility and the resident is not transferred back to the closing facility, the same

notice requirements specified above apply to the resident and the resident’s legal

representatives, other responsible parties, and other parties as if the resident was still

living in the facility.

Interview the administrator and other individual(s) responsible for managing, overseeing,

coordinating and implementing the plan to evaluate how each component of the plan is

being operationalized.

NOTE: The review of certain components such as an evaluation of the facility’s closure

plan, policies and procedures may be conducted off-site by the State Survey Agency and

may include assistance from the State LTC Ombudsman as the State Survey Agency

deems suitable and necessary.

When conducting an onsite survey prior to the impending closure, tour the facility and

interview staff including the medical director, residents, and family. Determine their

involvement in and/or knowledge of the facility closure plans and the resident transfer

procedures. Determine through observation, interview, and record review, as applicable:

• That the delivery of resident care and services are continuing to be provided,

monitored and supervised based upon the assessed needs and choices of each

resident. If problems are noted it may be necessary to further investigate and

review other quality of care regulations as appropriate. Do not cite quality of care

issues under the Facility Closure regulations;

• Whether written notices were provided timely and that the notice included the

expected date of the resident’s transfer to another facility or other setting; and

• How the facility involved the resident, his/her legal representative or other

responsible party, and the resident’s primary physician to determine the resident’s

goals, preferences and needs in planning for the services, location and setting to

which they will be moved.

NOTE: Refer to §483.15 for guidance for the post-discharge plan of care for an

anticipated discharge which applies to a resident whom the facility discharges to a private

residence or other home and community based setting, to another nursing home, or to

another type of residential facility such as a board and care home or an intermediate care

facility for individuals with intellectual disabilities or mental illness.

NOTE: §488.426(a)(1) and(2) - Transfer of residents, or closure of the facility and

transfer of residents, gives authority to the State for temporary facility closure in

emergency situations. If the State Survey Agency approves a facility’s temporary

relocation of residents during an emergency with the expectation that the residents will

return to the facility, this would not be regarded as a facility closure under these

requirements and the notification requirements would not be applicable. However, if a

facility ultimately closes permanently due to an emergency, the administrator is required

to provide proper notifications and follow the procedures outlined in this guidance.

F847 Entering Into Binding Arbitration Agreements

(Rev. 229; Issued: 04-25-25; Effective: 04-25-25; Implementation: 04-28-25)

§483.70(m) Binding Arbitration Agreements

If 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.

§483.70(m)(1) The facility must not require any resident or his or her representative

to sign an agreement for binding arbitration as a condition of admission to, or as a

requirement to continue to receive care at, the facility and must explicitly inform the

resident or his or her representative of his or her right not to sign the agreement as a

condition of admission to, or as a requirement to continue to receive care at, the

facility.

§483.70(m)(2) The facility must ensure that:

(i) 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;

(ii) The resident or his or her representative acknowledges that he or she

understands the agreement…

§483.70(m)(3) 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.

§483.70(m)(4) The agreement must explicitly state that neither the resident nor his or

her representative is required to sign an agreement for binding arbitration as a

condition of admission to, or as a requirement to continue to receive care at, the

facility.

§483.70(m)(5) 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 representative of the Office of the State

Long-Term Care Ombudsman, in accordance with §483.10(k). . .

NOTE: The requirements at 483.70(m) went into effect on September 16, 2019. This

guidance is intended for the review of arbitration agreements entered into on or after

September 16, 2019.

INTENT

To ensure that long -term care facilities inform residents or their representatives of the

nature and implications of any proposed binding arbitration agreement, to inform their

decision on whether or not to enter into such agreements.

The requirements at F847emphasize the residents’ or their representatives’ right to make

informed decisions and choices about important aspects of residents’ health, safety and

welfare. Facilities may present residents or their representatives the opportun ity to utilize

a binding arbitration agreement to resolve disputes at any time during a resident’s stay as

long as the agreement complies with the regulations at §483.70(m)(1)-(5).

DEFINITIONS

Arbitration: a private process where disputing parties agree that one or several other

individuals can make a decision about the dispute after receiving evidence and hearing

arguments.

3 8F

1

Binding Arbitration Agreement (Arbitration Agreement or Agreement): a binding

agreement by the parties to submit to arbitration all or certain disputes which have arisen

or may arise between them in respect of a defined legal relationship, whether contractual

or not. The decision is final, can be enforced by a court, and can only be appealed on

very narrow grounds.

39 F

2

Pre-dispute binding arbitration agreement (pre -dispute arbitration agreement or

pre-dispute agreement): A binding agreement to resolve a future unknown dispute with

an arbitrator prior to any issue or dispute arising.

Post-dispute binding arbitration agreement (post -dispute arbitration agreement, or

post-dispute agreement): A binding agreement signed after the circumstances of the

dispute have occurred to resolve the dispute with an arbitrator.

Dispute: A disagreement, controversy, or claim amongst parties where one party claims to

have been harmed.

Judicial Proceedings : any action by a judge (i.e., trials, hearings, petitions, or other

matters) formally before the court.

GUIDANCE §483.70(m)(1)(2)(i)(ii)(3)-(5)

Over the years, long-term care facilities and residents have used arbitration to resolve many

disputes. Parties subject to arbitration give up their right to have some or all claims heard

in court (The arbitration epidemic: Mandatory arbitration deprives workers and consumers

of their rights, https://www.epi.org/publication/the- arbitration-epidemic/

, Accessed

1/6/2021). The results of arbitration decisions are typically not disclosed to the public and

arbitrators’ decisions are generally final and binding with little or no opportunity to initiate

judicial proceedings that challenge unfavorable decisions.

Concerns have been raised about the fairness and transparency related to both the means

by which these agreements are created and the fairness of the arbitration processes

themselves in the specific context of long-term care facilities. For example, an individual

is often admitted to a long -term care facility directly from the hospital after a decline in

their health. These individuals are often quite ill and are not in a position to engage in

meaningful negotiations over the terms of an arbitration agreement or to coordinate care at

another facility. As a result, this is quite often an extremely stressful situation with limited

time to review documents before signing them. During this time, long-term care facilities

have often required individuals to sign pre-dispute arbitration agreements to obtain health

care. These factors, among others, impede individuals’ ability to obtain care and

simultaneously make it extremely difficult for residents or their representatives to make an

informed decision about arbitration. Therefore, asking individuals to commit to binding

arbitration agreement in these situations may not represent the best option in terms of

advancing the health care of residents.

Use of a binding arbitration agreement must be voluntary and must be clearly

communicated to the residents or their representatives as optional and not required as a

condition of admission or to continue to receive care at the facility. The agreement must

be explained so that the resident or his or her representative understands the terms of the

agreement. This should include an explanation that the resident may be giving up his or

her right to have a dispute decided in a court proceeding. And residents and their

representatives must be provided 30 days after signing to fully review and potentially

rescind any agreement that was not understood at the time of admission.

Pre- and Post-dispute Arbitration Agreements: Binding arbitration agreements may be

offered either before (pre -dispute) or after (post -dispute) a dispute arises. A pre -dispute

binding arbitration agreement is an agreement to resolve an unspecified future dispute(s)

through arbitration. Disputes may vary from a non- life threatening situation such as a

financial disagreement, up to and including significant concerns such as abuse, neglect,

and/or wrongful injury or death of a resident. By entering into a pre -dispute binding

arbitration agreement, the parties are not settling an existing dispute but deciding, in

advance, the forum in which any future disputes would be resolved. For example, if a

resident enters into a pre -dispute arbitration agreement when admitted to a facility, and a

few months later the facility is alleged to have wrongfully caused a type of harm covered

by the agreement, such as abuse, the resident cannot seek legal action through the

traditional court system. Rather, they must resolve the dispute through the agreed -upon

arbitration proceeding.

Facilities wishing to utilize pre-dispute binding arbitration agreements will generally offer

these arrangements prior to, or early in the admission process. Facilities must not require

residents or their representatives to enter into a binding pre -dispute arbitration agreement

as a condition of being admitted to the facility or as a requirement for continued care.

Post-dispute arbitration agreements involve the use of the arbitration process after a dispute

occurs, which would otherwise be resolved in a court proceeding. In such cases, following

an issue which gives rise to a dispute, the facility may propose using an arbitrator to resolve

the dispute, rather than engage in litigation in court. When the facility wishes to use a post-dispute binding arbitration agreement, existing legal authorities generally provide that the

facility must not compel, pressure, or coerce a resident or his or her representative to enter

into a binding arbitration agreement, and the regulation provides that the facility must not

require arbitration as a condition of receiving continued care at the facility.

Requirements for Arbitration Agreements - Transparency in the Arbitration

Process: The requirements at §483.70(m)(2)(i) specify that the arbitration “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.” It is important that the arbitration process is transparent. This means that

facilities should take every step to meet the resident’s needs or special accommodat ions

(e.g. literacy level, font size, format, language, etc.) when explaining the arbitration

agreement. When explaining the agreement, facilities must identify and use the resident’s

or their representative’s preferred communication method, including language, to ensure

understanding of the arbitration agreement. The terms and conditions of arbitration

agreements must be clearly explained to the resident or his or her representative.

The requirement at §483.70(m)(2)(ii) specifies that “the resident or his or her

representative acknowledges that he or she understands the agreement.” After the

arbitration agreement is explained in a manner and form the resident or their representative

understands, the facility must ensure there is evidence that the resident or their

representative has acknowledged understanding of the agreement. In some cases, the

binding arbitration agreement may specify that the resident or his or her representative

acknowledges understanding by signing the document. When a signature is used to

acknowledge understanding, additional evidence may be needed to establish that in fact the

resident or their representative understood what he or she was signing. It may not be

sufficient that the resident or their representative signed the document. It is also important

that facilities clarify when a signature is used to a cknowledge understanding, when it

indicates consent to enter into an agreement, or is used for both purposes.

Surveyors should determine how the facility ensures residents or their representatives

understood the terms of the binding arbitration agreement, and how this understanding is

acknowledged. Surveyors must verify through interview and record review, that t he

resident or their representative understood what they were signing. In situations where the

resident may have cognitive impairment, surveyors should refer to the medical record to

identify the resident’s health care decision-making capacity at the time the agreement was

offered, explained, and entered into.

Arbitration Agreements Embedded within other Contracts or Agreements: Binding

arbitration agreements may not necessarily be a stand -alone document. Facilities may

choose to offer pre-dispute arbitration agreements at the time of admission. Some facilities

may embed the arbitration agreement within the admission agreement, contract, or other

documents. In these cases, all of the requirements related to arbitration agreements still

apply. For example, the facility must explain that the admissions agreemen t includes a

binding arbitration agreement, and inform the resident of all of their rights related to this

agreement in a form and manner that they understand. Additionally, the facility should

clearly distinguish the arbitration agreement from the admiss ion agreement, so that,

residents or their representatives have a clear understanding of each agreement, and are

able to enter into or decline the arbitration agreement. In other words, residents must be

allowed to sign an admissions agreement without consenting to the facility’s arbitration

agreement. Surveyors should determine how the facility ensures residents or their

representatives are made aware of arbitration agreements which are embedded within

another document. Surveyors should also obtain copies of any documents or agreements

that include information about arbitration. For example, if a facility’s admission agreement

has a paragraph referencing arbitration, but also has a separate arbitration agreement, the

surveyor will need to examine both documents to ensure compliance.

Requirements for Arbitration Agreements – Language: The requirements at

§483.70(m)(1), (3)-(5) identify specific terms and conditions which must be “explicitly”

stated in any arbitration agreement between a resident or their representative, and a

Medicare and/or Medicaid certified facility. Explicitly mean s clearly and without any

vagueness or ambiguity. Thus, these terms and conditions must be disclosed in the

agreement in a clear and detailed manner, leaving no room for confusion. For further

arbitration agreement language to be included, refer to F848, specifically

§483.70(m)(2)(iii), (iv).

§483.70(m)(1): The arbitration agreement “…must explicitly inform the resident or his

or her representative of his or her right not to sign the agreement as a condition of

admission to, or as a requirement to continue to receive care at, the facility.” This

means that the agreement must clearly explain that the resident or their representative has

the right to refuse to enter into the arbitration agreement without fear of:

• Not being admitted; or

• Being transferred or discharged as a result of refusing to enter into an arbitration

agreement.

Facilities cannot refuse to admit any resident who has, or whose representative has,

declined to enter into an arbitration agreement. Additionally, facilities must not discharge

any resident for failure to use arbitration to settle a dispute.

NOTE: Surveyors should thoroughly investigate the basis for transfer or discharge for any

resident who has refused to enter into a binding arbitration agreement, and has been, or will

be subsequently transferred or discharged. For additional information, ref er to the

guidance at §483.15(c) - F627, Transfer and Discharge Requirements.

§483.70(m)(3): The arbitration “agreement must explicitly grant the resident or his or

her representative the right to rescind this agreement within 30 calendar days of

signing it.” This means the agreement must clearly explain that the resident or his or her

representative has 30 calendar days to withdraw from or terminate the agreement, should

he or she change their mind. This ensures that residents or their representatives have t ime

to reconsider the decision to use arbitration to settle a dispute with the facility. This also

allows time for them to seek legal advice, if he or she chooses to do so.

Facilities should have a process, that is also explained to the resident or their representative,

which ensures timely communication to the appropriate facility staff of a resident’s or

resident representative’s desire to withdraw from, or terminate the ar bitration agreement.

Otherwise, miscommunications or delays could deny the resident or representative the right

to withdraw from the agreement within the 30-day period.

§483.70(m)(4): The arbitration agreement “must explicitly state neither the resident nor

his or her representative is required to sign this agreement as a condition of admission

to, or as a requirement to continue to receive care at the facility. ” This means the

agreement itself must contain clear language that neither the resident nor the representative

are required to enter into the agreement as a condition of admission or to continue to reside

at the facility. As stated above at §483.70(m)(1) , this must be clearly conveyed without

any ambiguity, thereby ensuring that no reside nt or his or her representative will have to

choose between signing an arbitration agreement and receiving care at the facility.

§483.70(m)(5): The arbitration “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 representative of

the Office of the State Long-Term Care Ombudsman, in accordance with §483.10(k).”

Residents or their representatives have the right to unrestricted communication with

officials from federal agencies, as well as with state and local officials, including

representatives from the State Survey Agency, State Health department, and

representatives from the Office of the State Long-Term Care Ombudsman. In addition to

prohibition of language in the agreement which discourages such contact or

communication, this also means that there should be no attempt by facility staff to

discourage this communication verbally.

Surveyors should verify through interview that the resident or his or her representative

were not discouraged in any way from contacting federal, state, or local officials, which

includes and is not limited to surveyors and ombudsmen, when entering into a binding

arbitration agreement. For additional information, refer to the guidance at §483.10(k) -

F586, Contact with External Entities.

PROCEDURES AND PROBES §483.70(m)(1)(2)(i)(ii)(3)-(5)

Surveyors should verify with the facility whether arbitration agreements are used to resolve

disputes. If so, determine compliance with F847 through interview of sampled residents,

resident representatives, resident council/family council (if one exists), Long-Term Care

Ombudsman, facility staff; and record review, which includes reviewing the agreement and

other relevant documentation. For facilities that offer arbitration agreements, the following

are interview questions that may assist Surveyors in thei r investigation. Surveyors are not

required to ask all of the below interview questions, but instead use these example

questions as a guide during interviews.

NOTE: These provisions are not intended to, “supersede or interfere with state laws or

other state contract and consumer protection laws . . . except to the extent any such laws

are actually in conflict with this regulation.” 84 Fed. Reg. 34718, 34721 (July 18, 2019).

Interviews

a. Resident and/or his or her Representative: For residents who have arbitration

agreements, determine the extent to which the arbitration agreement was explained

to the resident or representative by asking:

• What is your understanding of the arbitration process when a dispute arises?

• Do you understand that you are giving up your right to litigation in a court

proceeding?

• Were you told that the facility could not require you to enter into an arbitration

agreement in order to be admitted, or in order to remain in the facility?

• Were you told that you had the right to terminate or withdraw from the agreement

within 30 days of signing? If yes, were you told how to do so?

• Did you feel you were obligated, required, forced or pressured to sign the binding

arbitration agreement? If yes, how so?

• Have you filed any complaint(s) or grievance(s) with the facility and/or state survey

agency about the arbitration agreement?

• Is there anything you would have liked to have known before signing the arbitration

agreement?

• Was the arbitration agreement explained in a way that you understood?

• If the arbitration agreement was included within another document, were you told

first that you had the right to decline the agreement; and second, how to exercise

this right (crossing out, etc.)?

b. Resident Council/ Family Council: For facilities having resident and/or family

councils, and that have elected to utilize arbitration agreements, determine if there

are general concerns with arbitration agreements. If concerns are identified,

surveyors should arrange to meet individually w ith the resident to discuss their

personal/private concerns related to arbitration agreements (for individual

interview probes, see resident/representative interview questions above). Ask the

following:

• Has the Resident’s Council ever voiced any concerns to the facility about

arbitration agreements, such as the way they are explained, pressure or being forced

into signing them, or concerns with the process for withdrawing or terminating an

agreement?

• Do you know if residents feel forced (coerced) to sign the arbitration agreement? If

yes, how so?

• Whom from the facility discusses or reviews the binding arbitration agreement with

residents or their representatives?

c. Facility staff: Interview facility staff responsible for explaining the arbitration

agreement to residents or their representatives. Determine how the facility staff

ensure the resident or his or her representative understands the agreement by

asking:

When, and under what circumstances, do you request that a resident or his or her

representative agree to an arbitration agreement?

• How do you ensure the resident or representative understands the terms of the

arbitration agreement?

• How do you ensure the arbitration agreement is explained in a form and manner

that accommodates the resident or his or her representative’s needs?

• How do you make sure the resident understands their rights with regard to the

arbitration agreement, such as their right to refuse to enter into it, and their right to

rescind it within 30 days?

• What is the process in your facility for allowing residents or their representatives

to terminate, or withdraw from an arbitration agreement in the first 30 days?

• Do you know any resident(s) whom your facility refused admission to, or

discharged due to refusal to sign a binding arbitration agreement?

• Have any residents filed a complaint or grievances with the facility regarding the

use of an arbitration agreement?

• How do you determine if the resident’s physical condition and his/her cognitive

status may be contributing factors in understanding of the binding arbitration

agreement, including their ability to make an informed and appropriate decision?

d. State Long-Term Care Ombudsman (if available):

• Did any resident or his or her representative report that he/she felt forced or

pressured into signing the binding arbitration agreements as a condition of

admission or as a requirement to continue receiving care at the facility?

• Do you know any resident whom the facility may have refused admission to, or

who was discharged, due to refusal to sign a binding arbitration agreement?

• Are you aware of any issues that have been raised regarding binding arbitration

agreements?

• Are you aware of any residents or representatives who sought to rescind a binding

arbitration agreement? If yes, how did the facility respond to the rescission request?

Record Review: Review the resident record, as well as the arbitration agreement to ensure:

The binding arbitration agreement clearly states that the resident or his or her

representative is not required to enter into the agreement as a condition of admission to the

facility, or as a requirement to continue to receive care.

• The binding arbitration agreement does not include language, which prohibits or

discourages the resident or representative from communicating with federal, state,

or local officials.

• There is evidence the binding arbitration agreement was explained in a form,

manner and language that the resident or his or her representative understands.

• There is evidence that the resident had the cognitive ability to understand the terms

of the agreement, and evidence the resident acknowledged this understanding.

• The binding arbitration agreement gives the resident or his or her representative the

right to rescind the agreement within 30 calendar days of signing it.

• For residents who have a representative, there is evidence the representative has the

legal authority to sign the binding arbitration agreement.

POTENTIAL TAGS FOR ADDITIONAL CONSIDERATION

If there are concerns regarding communication with external entities such as federal and

state surveyors, other federal or state health department employees, and representative of

the Office of the State Long-Term Care Ombudsman, surveyors should further investigate

and review regulatory requirements at §483.10(k), F586, Contact with External Entities.

If there are concerns regarding admission agreement, surveyors should further investigate

and review regulatory requirement at §483.15(a), F620, Admissions Policy.

If there are concerns regarding the basis for transfer and discharge for any resident who

has refused to enter into a binding arbitration agreement and has been, or will be

subsequently transferred or discharged, surveyors should further investigate and re view

regulatory requirements at §483.15(c), F627 Transfer and Discharge.

KEY ELEMENTS OF NONCOMPLIANCE

To cite deficient practice at F847, the surveyors’ investigation will generally show:

The facility failed to:

• Explain the terms of the agreement to the resident or his or her representative in a

form and manner (including language) that he or she understands; and/or

• Inform the resident or his or her representative they are not required to enter into a

binding arbitration agreement as a condition of admission, or as a condition to

continue to receive care at the facility; or

• Inform the resident or representative they have the right to rescind or terminate the

agreement within 30 calendar days of signing.

The agreement itself:

• Contains language that prohibits or discourages the resident or his or her

representative from communicating with federal, state, or local officials, including:

o Federal and state surveyors, and/or

o Other federal or state health department employees, and/or

o Representative of the Office of the State Long-Term Care Ombudsman; or

• Fails to contain language which clearly informs the resident or their representative

they are not required to sign the agreement as a condition of admission to, or as a

requirement to continue to receive care at the facility.

Guidance on Identifying Noncompliance at F847: In some cases, a resident or his or her

representative may not be able to recall the specifics of a conversation explaining

arbitration agreements held during admission or at some point previous to the survey. It is

not uncommon for an individual to not remember all the technical details of something

they signed in the past (e.g., six months ago). If a resident or their representative cannot

recall the conversation explaining arbitration agreements, or details of the terms of the

agreement, this alone may not necessarily indicate noncompliance. However, if several

residents do not recall being advised of their rights related to arbitration agreements, the

surveyor should conduct further investigation.

Conversely, if a resident or his or her representative actively asserts or complains that they

remember the admissions conversation, and can affirm that the facility staff member did

not inform them of their rights related to arbitration, this may indicate noncompliance. In

either case, surveyors are expected to verify noncompliance through further investigation

with the resident or representative, as well as other residents, staff members, and resident

council.

Guidance on Determining Severity of Noncompliance at F847: When determining the

severity of noncompliance at F847, surveyors must always consider what impact the

identified noncompliance had on the affected resident(s). However, unlike noncompliance

at other tags, such as Abuse or Quality of Care, which may result in physical, mental, and/or

psychosocial outcomes, noncompliance at F847 will almost exclusively have a

psychosocial impact or outcome. Surveyors must gather sufficient evidence through

interviews, record review and observation to demonstrate what the psychosocial impact

was to the resident. In some cases, the surveyor may have to use the reasonable person

concept to determine severity. Refer to the Psychosocial Severity Outcome Guide for

further information.

The failure of the facility to meet the requirements at F847 is more than minimal harm.

Therefore, Severity Level 1 does not apply for this regulatory requirement.

Absent evidence of actual harm, noncompliance at F847 would likely be cited at severity

level 2, No Actual Harm with Potential for More than Minimal Harm that is not Immediate

Jeopardy.

However, if the surveyor identifies that noncompliance at F847 has caused psychosocial

harm to the resident (per the Psychosocial Severity Outcome Guide), this should be cited

at severity level 3, Actual Harm that is not Immediate Jeopardy.

In order to cite Immediate Jeopardy, the surveyor’s investigation would have to show that

noncompliance resulted in the likelihood for serious psychosocial injury or harm, or caused

actual serious psychosocial injury or harm, and required immediate action to prevent

further serious psychosocial injury or harm from occurring or recurring. Refer to Appendix

Q for further information.

Guidance on Correcting Noncompliance at F847: When noncompliance exists at F847,

the Plan of Correction (POC) is expected to include the required elements as identified at

State Operations Manual, Chapter 7, §7317 – Acceptable Plan of Correction. These

include:

• Address how corrective action will be accomplished for those residents found to

have been affected by the deficient practice;

• Address how the facility will identify other residents having the potential to be

affected by the same deficient practice;

• Address what measures will be put into place or systemic changes made to ensure

that the deficient practice will not recur;

• Indicate how the facility plans to monitor its performance to make sure that

solutions are sustained; and

• Include dates when corrective action will be completed.

When the surveyor’s investigation shows systemic noncompliance, indicating a

complete disregard or unawareness of the requirements, such as the standard use of

arbitration agreements containing language which violates the requirements at

F847, evidence tha t the facility has made no attempt to explain arbitration

agreements, or evidence of overt attempts to conceal arbitration agreements within

other documents, in addition to the requirements for POCs listed above, CMS has

the following expectations with regard to the accepted POC:

• The POC must ensure that any new or revised arbitration agreements in use in the

facility complies with the requirements at F847 – Surveyors must review the

revised agreements and confirm that they comply with F847;

• If a resident or their representative has signed a non- compliant agreement, the

facility must ensure that the resident or their representative is promptly notified that

the agreement does not comply with §483.70(m), and it must promptly offer the

resident or their representative a compliant agreement;

• The facility must explain the terms of the new agreement to the residents or their

representatives, and do so in terms the residents or their representatives can

understand; and

• All other requirements at F847 are met.

1 Adapted from American Bar Association. “Dispute Resolution Processes: Arbitration.” Americanbar.org ,

Accessed 1/6/2021)

2 Adapted from American Bar Association. “Dispute Resolution Processes: Arbitration.” Americanbar.org,

Accessed 1/6/2021)

F848 Arbitrator/Venue Selection and Retention of Agreements

(Rev. 225; Issued: 08-08-24; Effective: 08-08-24; Implementation: 08-08-24)

§483.70(m) Binding Arbitration Agreements.

If 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. . .

§483.70(m)(2) The facility must ensure that . . .

(iii) The agreement provides for the selection of a neutral arbitrator agreed upon

by both parties; and

(iv)The agreement provides for the selection of a venue that is convenient to both

parties. . .

§483.70(m)(6) 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 and be available for inspection upon request by CMS or its designee.

NOTE: The requirements at 483.70(m) went into effect on September 16, 2019. This

guidance is intended for the review of arbitration agreements entered into on or after

September 16, 2019.

INTENT

To provide a neutral and fair arbitration process by ensuring both the resident or his or her

representative, and the facility agree on the selection of a neutral arbitrator, and that the

venue is convenient to both parties. In addition, the requirement t o retain a copy of the

signed agreement for binding arbitration and the arbitrator's final decision enables CMS to

ensure that CMS can fully evaluate quality of care complaints that are addressed in

arbitration and assess the overall impact of these agreem ents on the safety and quality of

care provided in long-term care facilities.

DEFINITIONS

Arbitrator: A third party who resolves a dispute between others by arbitration and

pursuant to an arbitration agreement. Arbitrators are decision makers, with procedures set

by the arbitration agreement and state law, except they may not be required to follow

federal or state rules of evidence and their decisions may not be reviewable by a court

absent extraordinary circumstances.

Convenient Venue: A location in which to carry out arbitration proceedings which should

be agreed upon and suitable to both parties.

Neutral Arbitrator: An impartial, or unbiased third- party decision maker, contracted

with, and agreed to by both parties to resolve their dispute.

GUIDANCE

The requirement at §483.70(m)(2)(iii) states “the facility must ensure that the

agreement provides for the selection of a neutral arbitrator agreed upon by both

parties.” Facilities wishing to utilize binding arbitration agreements should make

reasonable efforts to ensure that any arbitration agreement entered into with a resident or

his or her representative provides for the selection of an arbitrator who is impartial,

unbiased, and without the appearance of a conflict of interest. This ensures the integrity of

the arbitration process, and also ensures that residents who choose this alternative dispute

resolution are treated with the same fairness they would have if they chose to litigate.

Facilities may put forward suggestions for the use of specific arbitrators for residents (or

their representatives) to select. The resident or his or her representative is not obligated to

use the arbitrator (either an arbitration services company or an i ndividual arbitrator)

suggested by the facility, and may suggest an alternative arbitrator of their choosing.

Facilities are expected to make a reasonable attempt to come to agreement with the resident

or resident’s representative on the selection of a neutral arbitrator and provide a fair process

for selecting an arbitrator or arbitration services company.

To ensure a neutral arbitrator is selected, the facility should avoid even the appearance of

bias, partiality, or a conflict of interest, and should promptly disclose to the resident or his

or her representative the extent of any relationship which exists with an arbitrator or

arbitration services company, including how often the facility has contracted with the

arbitrator or arbitration service, and when the arbitrator or arbitration service has ruled for

or against the facility.

The requirement at §483.70(m)(2)(iv) states “the facility must ensure the agreement

provides for the selection of a venue that is convenient to both parties.” The binding

arbitration agreement must allow for the selection of a venue that is suitable in meeting

the needs of both the resident or his or her representative, and the facility. The venue should

be agreed upon by both parties. The venue is the geographical location of the arbitration

proceeding that may be chosen, in part, on the basis of convenie nce. Convenience for the

resident or resident’s representative may be determined by his or her needs in terms of

ability to get to the venue.

The requirements at §483.70(m)(6) state that “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 and be available for inspection upon request by CMS or

its designee.” When a dispute is resolved through arbitration, facilities are accountable and

responsible for retaining a copy of the signed binding arbitration agreement and final

decision for a period of 5 years following resolution of the arbitrated dispute. These records

must be made available for review to surveyors upon request.

NOTE: It is important for surveyors to focus on the record retention requirement, not the

content of the arbitration agreement or final decision(s) in determining compliance with

this requirement.

PROCEDURES AND PROBES §483.70(m)(2)(iii) & (iv)

Surveyors should verify with the facility whether arbitration agreements are used to resolve

disputes. If so, determine compliance with F848 through interview of sampled residents,

resident representatives, resident council/family council (if one exists), Long-Term Care

Ombudsman, facility staff; and record review, which includes reviewing the agreement and

other relevant documentation. For facilities that offer arbitration agreements, the following

are interview questions that may assist Surveyors in thei r investigation. Surveyors are not

required to ask all of the below interview questions, but instead use these example

questions as a guide during interviews.

Note: These provisions are not intended to, “supersede or interfere with state laws or other

state contract and consumer protection laws . . . except to the extent any such laws are

actually in conflict with this regulation.” 84 Fed. Reg. 34718, 34721 (July 18, 2019).

Interviews

a. Resident or Representative(s): Interview the resident or their representative to

determine the process for selecting a neutral arbitrator and convenient venue. Ask:

• How were you included in selecting the arbitrator?

• Were you given a choice in arbitrator?

• Were you given an opportunity to suggest an arbitrator?

• Do you agree with the arbitrator that was selected?

• Was more than one arbitrator suggested?

• Was a list of arbitrators to select from provided or alternatively were you made

aware of how to search for arbitration companies?

• What did the facility tell you about the arbitrator or arbitration services company?

• Are you aware of any relationship or association between the facility and the

arbitrator?

• How were you included in selecting the venue?

• Were you given a choice in venue?

• Was the agreed upon venue convenient to you and/or your representative?

• When were the arbitrator and venue selected? Under what circumstances?

• Did the facility reject any of your preferred arbitrators or venues? Why?

• Are you aware whether or not the facility used the same arbitrator or company in

the past?

b. Resident Council/Family Council: For facilities having resident and/or family councils

and have elected to utilize arbitration agreements, determine if there are general concerns

with arbitration agreements. If concerns are identified, surveyors should arrange to meet

individually with th e resident to discuss their personal/private concerns related to

arbitration agreements (for individual interview probes, see resident/representative

interview questions above). Ask the following:

• Are you aware of any concerns about the selection of a neutral arbitrator and/or the

selection of a convenient venue? (Remind residents not to share personal, private

information in the group setting.)

c. Facility Staff: Interview the facility staff responsible for facilitating the selection of a

neutral arbitrator and convenient venue. Ask:

• How do you ensure that the resident or his or her representative has an equal role

in selecting a neutral arbitrator?

• What is your process for selecting a neutral arbitrator?

• How do you ensure that the resident or his or her representative has an equal role

in selecting a convenient venue?

• What is your process for selecting a convenient venue?

• When a resident or his or her representative do not agree with the arbitrator and/or

venue, what are the next steps?

• How does the agreement provide for the selection of the arbitrator is agreed upon

by both parties? What is the facility’s policy on retention of the signed binding

arbitration agreements and the final dispute documentation?

• When, and under what circumstances, do you approach residents or their

representatives about selecting an arbitrator or venue?

• Are there any active complaints or grievances regarding the selection of an

arbitrator or venue? How are you addressing these concerns?

• What information do you provide residents or their representatives regarding

specific arbitrators or arbitration services companies (i.e., regarding parent

corporation/owners using specific arbitration company)?

• Have you used more than one arbitrator/arbitration services company in the past

few years? How many times have you contracted with the same company?

d. State Long Term Care Ombudsmen (if available): Interview the representative of the

State Long-Term Care Ombudsman who serves resident of the facility. Ask:

• Did any resident or his or her representative ask your assistance to select an

arbitrator or venue?

• Did any resident or his or her representative complain to you that he/she was forced

or pressured to select a particular arbitrator/arbitration company or venue?

• Did any resident or his or her representative report that an arbitrator and/or venue

was pre- selected (i.e., the resident or his or her representative did not have an

opportunity to agree to an arbitrator and/or venue)?

• Did any resident or his or her representative complain the venue was inconvenient

to them?

Record Review: Review the binding arbitration agreement, any other pertinent

information relevant to the selection of the arbitrator and venue as well as the arbitrator's

final decision after resolution of a dispute (if applicable) to identify the following:

• Is there evidence that the resident or his or her representative were provided with

the opportunity to select a neutral arbitrator?

• Is there evidence that the resident or his or her representative were provided with

the opportunity to select a convenient venue?

• Is there evidence the facility retained a copy of the signed agreement for binding

arbitration and the arbitrator's final decision, after the resolution of a dispute

through arbitration for five (5) years?

KEY ELEMENTS OF NON-COMPLIANCE

To cite deficient practice at F848, the surveyor’s investigation will generally show that the

facility failed to do any one or more of the following:

• Ensure that the arbitration agreement specifically provides for the selection of a

neutral arbitrator; or

• Ensure that the arbitration agreement specifically provides for the selection of a

venue that is convenient; or

For disputes resolved by arbitration, the facility failed to:

• Retain a copy of the signed agreement for binding arbitration and the arbitrator's

final decision (for disputes resolved by arbitration) after the facility and a resident

or their representative resolve a dispute through arbitration for five (5) years; or

• Refuse to make the signed agreement or final decision available for inspections

upon request by CMS or its designee.

Guidance on Identifying Noncompliance at F848: In some cases, a resident or his or her

representative may not be able to recall all the specifics about the selection of a neutral

arbitrator or convenient venue. If a resident or their representative cannot recall the details

of the selection of a neutral arbitrator or a convenient venue, this alone may not necessarily

indicate noncompliance. However, if several residents do not recall the process of selecting

a neutral arbitrator, or a convenient venue, the surveyor should conduct further

investigation.

Conversely, if a resident or his or her representative actively asserts or complains that there

is no process for the selection of a neutral arbitrator or a convenient venue to both parties,

this likely constitutes noncompliance.

In either case, surveyors are expected to verify noncompliance through further

investigation with the resident or representative, as well as other residents, staff members,

and resident council.

Guidance on Determining Severity of Noncompliance at F848: When determining the

severity of noncompliance at F848, surveyors must always consider what impact the

identified noncompliance had on the affected resident(s). However, unlike noncompliance

at other tags, such as Abuse or Quality of Care, which may result in physical, mental, and/or

psychosocial outcomes, noncompliance at F848 will almost exclusively have a

psychosocial impact or outcome. Surveyors must gather sufficient evidence through

interviews, record review and observation to demonstrate what the psychosocial impact

was to the resident. In some cases, the surveyor may have to use the reasonable person

concept to determine severity. Refer to the Psychosocial Severity Outcome Guide for

further information.

If the surveyor identifies noncompliance at F848 for the failure to retain signed arbitration

agreements and/or the arbitrator’s final decision for residents that have resolved a dispute

through arbitration for 5 years, Severity Level 1 may be the appropri ate severity level for

this regulatory requirement.

In other cases, noncompliance at the other requirements at F848 (failure for the agreement

to provide for the selection of a neutral arbitrator or convenient location) would likely be

cited at severity level 2, No Actual Harm with Potential for More than Minimal Harm that

is not Immediate Jeopardy.

If the surveyor identifies that noncompliance at F848 has caused psychosocial harm to the

resident (per the Psychosocial Severity Outcome Guide), this should be cited at severity

level 3, Actual Harm that is not Immediate Jeopardy.

In order to cite Immediate Jeopardy, the surveyor’s investigation would have to show that

noncompliance resulted in the likelihood for serious psychosocial injury or harm, or caused

actual serious psychosocial injury or harm, and required immediate action to prevent

further serious psychosocial injury or harm from occurring or recurring. Refer to State

Operations Manual (SOM) Appendix Q for further information.

Guidance on Correcting Noncompliance at F848: When noncompliance exists at F848,

the Plan of Correction (POC) is expected to include the required elements as identified in

the SOM, Chapter 7, at 7317 – Acceptable Plan of Correction. These include:

• Address how corrective action will be accomplished for those residents found to

have been affected by the deficient practice;

• Address how the facility will identify other residents having the potential to be

affected by the same deficient practice;

• Address what measures will be put into place or systemic changes made to ensure

that the deficient practice will not recur;

• Indicate how the facility plans to monitor its performance to make sure that

solutions are sustained; and

• Include dates when corrective action will be completed.

When the surveyor’s investigation shows systemic noncompliance with F848,

indicating a complete disregard or unawareness of the requirements, such as

agreements, which make no provision for the selection of a neutral arbitrator or

convenient venue, CMS has the following expectations (in addition to the

requirements for POCs listed above) with regard to the accepted POC:

• The POC must ensure that all arbitration agreements allow for the selection of a

neutral arbitrator and convenient venue; and

• There must be a process to ensure records are retained for 5 years.