Every time I think the spate of state supreme court opinions about nursing home arbitration surely must be over, another one comes out to prove me wrong. Last week, it was one from Alabama, finding an arbitration agreement was never formed, because the resident lacked capacity and the daughter who signed on his behalf
nursing home
State Supreme Courts Falling In Line On Arbitration
Despite how often I talk about whack-a-mole and the tug-of-war between the state courts and SCOTUS on arbitration, the truth is that the majority of state supreme courts follow SCOTUS’s arbitration precedent (whether holding their noses or not, we don’t know). Recent weeks have given us multiple of those pro-arbitration state court decisions to highlight…
Resistance Or Retaining Shred of Dignity? Kentucky Responds On Kindred
If I had to choose a favorite subset of arbitration cases, it might be the ones that come after SCOTUS remands to a state supreme court. How does a state high court full of accomplished professionals, the cream of the legal crop in their state, respond after the U.S. Supreme Court has found their previous…
Enforcing Nursing Home Arbitration Agreements Post-Kindred
Just five months ago, the U.S. Supreme Court weighed in on a nursing home arbitration dispute in Kindred Nursing Centers v. Clark. It held that the Kentucky supreme court’s rationale for not enforcing the arbitration agreement was preempted by the Federal Arbitration Act. Before that, multiple state courts had found state law bases for…
Trump Administration Gives First Peek Into Its Arbitration Strategy
In a first indication of the Trump Administration’s stance on consumer arbitration, the Centers for Medicare & Medicaid Services (CMS) this week issued a new proposed rule that rolls back the Obama Administration’s regulation, which precluded pre-dispute arbitration agreements in nursing homes. (Too many negatives in that sentence… in other words, the Trump Administration wants…
SCOTUS Reverses KY Nursing Home Arbitration Decision; Refuses To Prioritize Right To Jury Trial
Just as I predicted, SCOTUS reversed the Kentucky Supreme Court’s decision in Kindred this morning. The interesting piece, though, is that the seven member majority went out of its way to cut off some of the “on trend” methods that state courts have been using to avoid arbitration clauses.
The Kentucky decision can be…
SCOTUS Hearing Arbitration Case Wednesday; Spotlight On State Cases
While the Supreme Court has put off hearing a more contentious arbitration case until the fall (presumably in hopes that it will have nine justices by then), tomorrow it will hear the nursing home arbitration case from Kentucky. I look forward to listening to the questions and trying to figure out why the Justices granted …
SCOTUS Accepts Review of Kentucky Nursing Home Arbitration Case
On October 28, the Supreme Court granted a cert petition in a case in which the Kentucky Supreme Court refused to enforce arbitration agreements in nursing home agreements. (Kentucky recently topped my list of states hostile to arbitration precisely because of the language in the decision that will be reviewed…)
Administration Joins Courts In Prohibiting Arbitration In Nursing Home Admissions
Within the U.S. Government, the CFPB has gotten most of the attention for trying to regulate consumer arbitration. But this month, the Centers for Medicare & Medicaid Services (CMS) are bumping the CFPB out of the arbitration regulation spotlight. In particular, the CMS issued a rule that will prohibit the use of pre-dispute arbitration…
In 3 Recent Decisions, Supreme Court of Arkansas Deeply Divided on Arbitration
The Supreme Court of Arkansas has issued three opinions within the span of four weeks, all on the topic of whether defendants can compel arbitration. Each of the opinions came with a vigorous dissent. The cases offer an interesting look at a state high court that appears to be struggling to deal with FAA case…