October 20, 2021

Volume XI, Number 293

Advertisement
Advertisement

October 19, 2021

Subscribe to Latest Legal News and Analysis

October 18, 2021

Subscribe to Latest Legal News and Analysis
Advertisement

Colorado Court Invalidates Arbitration Agreement Between Long-Term Care Facility and Resident: What Facilities Should Know

In early 2021, the Colorado Court of Appeals issued an opinion concerning the validity of an arbitration agreement under the Colorado Health Care Availability Act (HCAA) that permits binding pre-dispute arbitration between patients and their health care providers if the agreement is executed in accordance with the HCAA’s specified requirements. Under the HCAA, an arbitration agreement between a health care provider and a patient is valid if, among other things, the agreement contains certain statutorily required disclosures, and a written copy of the agreement is provided to the patient or the patient’s representative.

In Johnson v. Rowan Inc., __ P.3d __, 2021 WL 280523 (Colo. App. 2021), plaintiffs argued that a long-term care facility’s arbitration agreement violated the HCAA and thus was unenforceable because (1) a written copy was not provided to them and (2) a facility representative failed to sign the agreement. The Court of Appeals agreed with the plaintiffs and found that these failures invalidated the arbitration agreement, making it unenforceable. In so holding, the court also referenced unfavorably the “stack of papers” containing the arbitration agreement that was provided to the plaintiffs upon admission and the fact that those papers were required to be signed in a relatively short amount of time.

In light of this holding, and given that much of the admission process is done electronically, facilities should consider the following additional steps, which may increase the likelihood that their arbitration agreements are upheld and enforced by a Colorado court:

  • Separate the arbitration agreement from other admissions paperwork and separately in a focused manner, present it to the resident or the resident’s representative(s);

  • Always countersign the agreement at the time the agreement is signed by the resident or the resident’s representative(s);

  • Provide the resident or the resident’s representative(s) with a written hard copy of the fully executed agreement at the time it is signed; and

  • Have the resident or the resident’s representative(s) sign an acknowledgment stating that they have received a written hard copy of the arbitration agreement. 

©2021 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume XI, Number 152
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

About this Author

Fred Miles Healthcare Attorney Greenberg Traurig
Of Counsel

Fred Miles is known across the United States for his deep knowledge of health law, including the representation of providers in the post-acute services health care sector. Fred maintains an active regulatory trial practice, counseling clients on Medicare and Medicaid program issues such as fraud and abuse, licensing, certification, and reimbursement.

Fred’s deep administrative trial experience includes the representation of clients at the federal level in cases arising from licensing and reimbursement issues. He also regularly appears in state administrative forums across the Rocky...

303.685.7403
Jennifer Little Health Care Attorney GT Law
Associate

Jennifer M. Little focuses her practice on legal matters in the health care industry, including health care regulatory issues arising from the Stark Law, the Anti-Kickback Statute, the False Claims Act, and HIPAA, and counseling clients on Medicaid program issues. She advises clients on a range of agreements, including nondisclosure agreements, service agreements, physician employment agreements, and business associate agreements. She represents providers in Medicaid reimbursement appeals before the Colorado Office of Administrative Courts and advocates for a wide range of health care...

303-572-6564
Advertisement
Advertisement
Advertisement