News For Nursing Homes: Federal Government’s Attempt to Ban Nursing Home Arbitration Blocked

George IndestBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On November 7, 2016, a Mississippi federal judge temporarily blocked enforcement of the federal government’s proposed ban on mandatory arbitration in cases involving nursing homes. The order from U.S. District Judge Michael P. Mills granted a preliminary injunction sought by the American Health Care Association (AHCA) and prevents the ban from taking effect on Nov. 28.

The proposed rule, released by the Centers for Medicare & Medicaid Services (CMS), bans so-called pre-dispute binding arbitration clauses in nursing home contracts, which require patients and families to settle any dispute over care in arbitration, rather than through the court system.

To learn more about the rule, click here.

Click here to read the final rule issued by CMS.

Not Everyone Agrees With The Rule.

In Judge Mills’s order, he wrote that the CMS “does not have the authority to ban nursing home arbitration on general policy grounds,” even if the goal of protecting elderly Americans is a worthy one.

Additionally, Judge Mills added that CMS could conceivably justify the ban by citing its authority to protect the health and safety of nursing home residents. But, that would require “an exceedingly broad understanding of agency authority.”

Click here to read Judge Mill’s order in full.

AHCA, a top trade group for nursing homes, shared their disapproval of the ban and stated that they are happy with the outcome. “We believe federal law plainly prohibits CMS from issuing this arbitration regulation, and this injunction will halt implementation of the final rule until the court can consider the merits of the case,” the association said.

Contact Health Law Attorneys Experienced with Nursing Home Cases.

The Health Law Firm and its attorneys represent nursing homes and nursing home employees in a number of different matters including incorporation, preparing contracts, defending the facility against malpractice claims, licensing and regulatory matters, administrative hearings, and routine legal advice.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at


Overley, Jeff. “BREAKING: Feds’ Ban On Nursing Home Arbitration Blocked.” Law360. (November 7, 2016). Web.

Corkery, Michael. “U.S. Just Made It A lot More Easier To Sue Nursing Homes.” The New York Times. (September 29, 2016). Web.


About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

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