Ding Dong The Arbitration Ban Is Dead!

I vividly recall attending the Bronx Bar Association Dinner last fall when it was announced that the Centers for Medicare & Medicaid Services (CMS) would ban pre-dispute arbitration provisions in nursing home admission agreements as of November 28, 2016. This news was relayed to me by a Bronx Supreme Court judge who had denied my very first motion to compel arbitration under such a provision. That denial ultimately was reversed on appeal.

As I explained in my October 4, 2016, blog post, in enacting the ban, 42 CFR Sec. 483.70(n), the CMS regulators concluded in their commentary that requiring residents to sign pre-dispute arbitration agreements is "fundamentally unfair" because it is impossible for residents or their decision makers to give fully informed and voluntary consent to arbitration before a dispute has arisen. The opponents to pre-dispute arbitration obviously impressed upon the regulators that allowing nursing homes to include arbitration provisions in