II 

118TH CONGRESS 

2D SESSION S. 4087 

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 SENATE OF THE UNITED STATES 

APRIL 9, 2024 

Mr. BLUMENTHAL (for himself and Ms. HIRONO) introduced the following bill; 

which was read twice and referred to the Committee on Finance 

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 respect to residents of those facilities under the Medicare 

and Medicaid programs, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Fairness in Nursing 

5 Home Arbitration Act’’. 


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1 SEC. 2. PROHIBITING PRE-DISPUTE ARBITRATION AGREE2 MENTS. 

3 (a) MEDICARE.—Section 1819(c) of the Social Secu4 rity Act (42 U.S.C. 1395i–3(c)) is amended by adding at 

5 the end the following new paragraph: 

6 ‘‘(7) PROHIBITION ON USE OF PRE-DISPUTE

7 ARBITRATION AGREEMENTS.— 

8 ‘‘(A) IN GENERAL.—A skilled nursing fa9 cility may not require, solicit, accept, or move 

10 to enforce a pre-dispute arbitration agreement 

11 from or on behalf of any resident, whether the 

12 agreement is made before, during, or after the 

13 resident’s admission to the facility. 

14 ‘‘(B) APPLICATION.—This paragraph shall 

15 apply to the skilled nursing facility and to any 

16 other business or person providing or respon17 sible for providing skilled nursing services to 

18 the resident. 

19 ‘‘(C) NO VALIDITY OR ENFORCEMENT.—A 

20 pre-dispute arbitration agreement shall not be 

21 valid or specifically enforceable against a resi22 dent or former resident of a skilled nursing fa23 cility, without regard to whether the agreement 

24 was made prior to or after the effective date of 

25 this paragraph. 


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1 ‘‘(D) DEFINITION OF PRE-DISPUTE ARBI2 TRATION AGREEMENT.—In this paragraph, the 

3 term ‘pre-dispute arbitration agreement’ means 

4 any agreement to arbitrate a dispute when the 

5 dispute has arisen after such agreement has 

6 been made. 

7 ‘‘(E) JUDICIAL REVIEW.—A determination 

8 as to whether and how this paragraph applies 

9 to an arbitration agreement shall be determined 

10 under Federal law by a court of competent ju11 risdiction, rather than an arbitrator, without re12 gard to whether the party opposing arbitration 

13 challenges such agreement specifically or in 

14 conjunction with any other term of the contract 

15 containing such agreement.’’. 

16 (b) MEDICAID.— 

17 (1) HOME AND COMMUNITY-BASED SERVICES

18 AND HOME HEALTH CARE SERVICES.—Section 1915 

19 of the Social Security Act (42 U.S.C. 1396n) is 

20 amended by adding at the end the following new 

21 subsection: 

22 ‘‘(m) PROHIBITING PRE-DISPUTE ARBITRATION

23 AGREEMENTS.— 

24 ‘‘(1) IN GENERAL.—For home and community25 based services or home health care services provided 


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1 under a waiver under this section, section 

2 1902(a)(10)(D), or any other provision authorizing 

3 the provision of home and community-based services 

4 or home health care services under this title, the 

5 provider of such services (and any employee, agent, 

6 related entity, or affiliate of such provider) may not 

7 require, solicit, accept, or move to enforce a pre-dis8 pute arbitration agreement from or on behalf of any 

9 individual receiving such services, whether the agree10 ment is made before, during, or after the first date 

11 on which services are received. A pre-dispute arbitra12 tion agreement between such a provider (or entity or 

13 person) and an individual receiving services (or who 

14 formerly received services) shall not be valid or en15 forceable, without regard to whether such agreement 

16 was made prior to the effective date of this sub17 section. 

18 ‘‘(2) DEFINITION OF PRE-DISPUTE ARBITRA19 TION AGREEMENT.—The term ‘pre-dispute arbitra20 tion agreement’ means any agreement to arbitrate a 

21 dispute when the dispute has arisen after such 

22 agreement has been made. 

23 ‘‘(3) JUDICIAL REVIEW.—A determination as to 

24 whether and how this subsection applies to an arbi25 tration agreement shall be determined under Federal 


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1 law by a court of competent jurisdiction, rather than 

2 an arbitrator, without regard to whether the party 

3 opposing arbitration challenges such agreement spe4 cifically or in conjunction with any other term of the 

5 contract containing such agreement.’’. 

6 (2) NURSING FACILITIES.—Section 1919(c) of 

7 the Social Security Act (42 U.S.C. 1396r(c)) is 

8 amended by adding at the end the following new 

9 paragraph: 

10 ‘‘(9) PROHIBITION ON USE OF PRE-DISPUTE

11 ARBITRATION AGREEMENTS.— 

12 ‘‘(A) IN GENERAL.—A nursing facility may 

13 not require, solicit, accept, or move to enforce 

14 a pre-dispute arbitration agreement from or on 

15 behalf of any resident, whether the agreement 

16 is made before, during, or after the resident’s 

17 admission to the facility. 

18 ‘‘(B) APPLICATION.—This paragraph shall 

19 apply to the nursing facility and to any other 

20 business or person providing or responsible for 

21 providing nursing services to the resident. 

22 ‘‘(C) NO VALIDITY OR ENFORCEMENT.—A 

23 pre-dispute arbitration agreement shall not be 

24 valid or specifically enforceable against a resi25 dent or former resident of a nursing facility, 


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1 without regard to whether the agreement was 

2 made prior to or after the effective date of this 

3 paragraph. 

4 ‘‘(D) DEFINITION OF PRE-DISPUTE ARBI5 TRATION AGREEMENT.—In this paragraph, the 

6 term ‘pre-dispute arbitration agreement’ means 

7 any agreement to arbitrate a dispute when the 

8 dispute has arisen after such agreement has 

9 been made. 

10 ‘‘(E) JUDICIAL REVIEW.—A determination 

11 as to whether and how this paragraph applies 

12 to an arbitration agreement shall be determined 

13 under Federal law by a court of competent ju14 risdiction, rather than an arbitrator, without re15 gard to whether the party opposing arbitration 

16 challenges such agreement specifically or in 

17 conjunction with any other term of the contract 

18 containing such agreement.’’. 

19 SEC. 3. EFFECTIVE DATE; APPLICATION OF AMENDMENTS. 

20 This Act, and the amendments made by this Act, 

21 shall take effect on the date of the enactment of this Act. 

Æ 


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