On September 28, 2016, CMS created the “Arbitration Rule”, banning arbitration agreements in nursing home admission agreements. By creating this Rule, CMS took the position that, due to the inequality of bargaining power between potential nursing home residents and long term care facilities, those facilities could no longer require, or even offer, binding arbitration as part of the admission process or at any point prior to a dispute arising.
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Proposed “Arbitration Fairness Act of 2017” Continues Trend to End the Enforcement of Pre-Dispute Arbitration Agreement
Senator Al Franken of Minnesota and Rep. Hank Johnson of Georgia have introduced the Arbitration Fairness Act of 2017. This bill, if enacted, would amend the Federal Arbitration Act (FAA) by adding a new chapter invalidating agreements that require arbitration of employment, consumer, antitrust or civil rights disputes entered into before a dispute arises. Senator Franken’s description of the bill acknowledges that “arbitration can be a suitable alternative to litigation if the consent to arbitration is truly voluntary and occurs after the dispute arises...”
In Sanford v. CenturyTel of Missouri, LLC, d/b/a CenturyLink, No. SC95465 (Mo. en banc 2016), the Missouri Supreme Court recently held that an order denying a motion to compel arbitration is immediately appealable. The order denying arbitration must be appealed within 10 days from entry to avoid waiting for a final judgment after trial to challenge the denial. Missouri Revised Statute § 435.440 states that an appeal may be taken from an order denying an application to compel arbitration.