In early 2021, the Colorado Court of Appeals issued an opinion in Johnson v. Rowan Inc., 2021 WL 280523 (Colo. App. 2021).  The case involved the enforceability of an arbitration agreement in the stack of admission paperwork. The Colorado Health Care Availability Act (HCAA) permits mandatory pre-dispute arbitration between patients and their health care providers with the HCAA’s requirements. Under the HCAA, an arbitration agreement is valid if the agreement contains certain disclosures, and the facility provides a written copy to the resident or representative.

In Johnson, the agreement failed to comply with the requirements. The facility’s arbitration agreement violated the HCAA. The agreement was unenforceable because (1) the facility failed to provide a written copy to the family and (2) a facility representative failed to sign the agreement. The Court of Appeals held that these failures invalidated the arbitration agreement.

Hopefully, CMS will soon outlaw these mandatory arbitration agreements. They are patently unfair to residents.