Fairness in Nursing Home Arbitration Act

I 117TH CONGRESS 1ST SESSION H. R. 2812 To amend titles XVIII and XIX of the Social Security Act to prohibit skilled nursing facilities and nursing facilities from using pre-dispute arbitration agreements with respect to residents of those facilities under the Medicare and Medicaid programs, and for other purposes. IN THE HOUSE OF REPRESENTATIVES APRIL 22, 2021 Ms. SA´NCHEZ (for herself and Ms. SCHAKOWSKY) introduced the following bill; which was referred to the Committee on Ways and Means, and in addition to the Committee on Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee con- cerned A BILL To amend titles XVIII and XIX of the Social Security Act to prohibit skilled nursing facilities and nursing facilities from using pre-dispute arbitration agreements with re- spect to residents of those facilities under the Medicare and Medicaid programs, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Fairness in Nursing 4 Home Arbitration Act’’. 5 VerDate Sep 11 2014 22:31 Jun 07, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H2812.IH H2812 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 2812 IH SEC. 2. PROHIBITING PRE-DISPUTE ARBITRATION AGREE- 1 MENTS. 2 (a) MEDICARE.—Section 1819(c) of the Social Secu- 3 rity Act (42 U.S.C. 1395i–3(c)) is amended by adding at 4 the end the following new paragraph: 5 ‘‘(7) PROHIBITION ON USE OF PRE-DISPUTE 6 ARBITRATION AGREEMENTS.— 7 ‘‘(A) IN GENERAL.—A skilled nursing fa- 8 cility may not require, solicit, accept, or move 9 to enforce a pre-dispute arbitration agreement 10 from or on behalf of any resident, whether the 11 agreement is made before, during, or after the 12 resident’s admission to the facility. 13 ‘‘(B) APPLICATION.—This paragraph shall 14 apply to the skilled nursing facility and to any 15 other business or person providing or respon- 16 sible for providing skilled nursing services to 17 the resident. 18 ‘‘(C) NO VALIDITY OR ENFORCEMENT.—A 19 pre-dispute arbitration agreement shall not be 20 valid or specifically enforceable against a resi- 21 dent or former resident of a skilled nursing fa- 22 cility, without regard to whether the agreement 23 was made prior to or after the effective date of 24 this paragraph. 25 VerDate Sep 11 2014 22:31 Jun 07, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2812.IH H2812 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 2812 IH ‘‘(D) DEFINITION OF PRE-DISPUTE ARBI- 1 TRATION AGREEMENT.—In this paragraph, the 2 term ‘pre-dispute arbitration agreement’ means 3 any agreement to arbitrate a dispute when the 4 dispute has arisen after such agreement has 5 been made. 6 ‘‘(E) JUDICIAL REVIEW.—A determination 7 as to whether and how this paragraph applies 8 to an arbitration agreement shall be determined 9 under Federal law by a court of competent ju- 10 risdiction, rather than an arbitrator, without re- 11 gard to whether the party opposing arbitration 12 challenges such agreement specifically or in 13 conjunction with any other term of the contract 14 containing such agreement.’’. 15 (b) MEDICAID.— 16 (1) HOME AND COMMUNITY-BASED SERVICES 17 AND HOME HEALTH CARE SERVICES.—Section 1915 18 of the Social Security Act (42 U.S.C. 1396n) is 19 amended by adding at the end the following new 20 subsection: 21 ‘‘(m) PROHIBITING PRE-DISPUTE ARBITRATION 22 AGREEMENTS.— 23 ‘‘(1) IN GENERAL.—For home and community- 24 based services or home health care services provided 25 VerDate Sep 11 2014 22:31 Jun 07, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2812.IH H2812 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 2812 IH under a waiver under this section, section 1 1902(a)(10)(D), or any other provision authorizing 2 the provision of home and community-based services 3 or home health care services under this title, the 4 provider of such services (and any employee, agent, 5 related entity, or affiliate of such provider) may not 6 require, solicit, accept, or move to enforce a pre-dis- 7 pute arbitration agreement from or on behalf of any 8 individual receiving such services, whether the agree- 9 ment is made before, during, or after the first date 10 on which services are received. A pre-dispute arbitra- 11 tion agreement between such a provider (or entity or 12 person) and an individual receiving services (or who 13 formerly received services) shall not be valid or en- 14 forceable, without regard to whether such agreement 15 was made prior to the effective date of this sub- 16 section. 17 ‘‘(2) DEFINITION OF PRE-DISPUTE ARBITRA- 18 TION AGREEMENT.—The term ‘pre-dispute arbitra- 19 tion agreement’ means any agreement to arbitrate a 20 dispute when the dispute has arisen after such 21 agreement has been made. 22 ‘‘(3) JUDICIAL REVIEW.—A determination as to 23 whether and how this subsection applies to an arbi- 24 tration agreement shall be determined under Federal 25 VerDate Sep 11 2014 22:31 Jun 07, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2812.IH H2812 pamtmann on DSKBC07HB2PROD with BILLS 5 •HR 2812 IH law by a court of competent jurisdiction, rather than 1 an arbitrator, without regard to whether the party 2 opposing arbitration challenges such agreement spe- 3 cifically or in conjunction with any other term of the 4 contract containing such agreement.’’. 5 (2) NURSING FACILITIES.—Section 1919(c) of 6 the Social Security Act (42 U.S.C. 1396r(c)) is 7 amended by adding at the end the following new 8 paragraph: 9 ‘‘(9) PROHIBITION ON USE OF PRE-DISPUTE 10 ARBITRATION AGREEMENTS.— 11 ‘‘(A) IN GENERAL.—A nursing facility may 12 not require, solicit, accept, or move to enforce 13 a pre-dispute arbitration agreement from or on 14 behalf of any resident, whether the agreement 15 is made before, during, or after the resident’s 16 admission to the facility. 17 ‘‘(B) APPLICATION.—This paragraph shall 18 apply to the nursing facility and to any other 19 business or person providing or responsible for 20 providing nursing services to the resident. 21 ‘‘(C) NO VALIDITY OR ENFORCEMENT.—A 22 pre-dispute arbitration agreement shall not be 23 valid or specifically enforceable against a resi- 24 dent or former resident of a nursing facility, 25 VerDate Sep 11 2014 22:31 Jun 07, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2812.IH H2812 pamtmann on DSKBC07HB2PROD with BILLS 6 •HR 2812 IH without regard to whether the agreement was 1 made prior to or after the effective date of this 2 paragraph. 3 ‘‘(D) DEFINITION OF PRE-DISPUTE ARBI- 4 TRATION AGREEMENT.—In this paragraph, the 5 term ‘pre-dispute arbitration agreement’ means 6 any agreement to arbitrate a dispute when the 7 dispute has arisen after such agreement has 8 been made. 9 ‘‘(E) JUDICIAL REVIEW.—A determination 10 as to whether and how this paragraph applies 11 to an arbitration agreement shall be determined 12 under Federal law by a court of competent ju- 13 risdiction, rather than an arbitrator, without re- 14 gard to whether the party opposing arbitration 15 challenges such agreement specifically or in 16 conjunction with any other term of the contract 17 containing such agreement.’’. 18 SEC. 3. EFFECTIVE DATE; APPLICATION OF AMENDMENTS. 19 This Act, and the amendments made by this Act, 20 shall take effect on the date of the enactment of this Act. 21 Æ VerDate Sep 11 2014 22:31 Jun 07, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6301 E:\BILLS\H2812.IH H2812 pamtmann on DSKBC07HB2PROD with BILLS