From: Fred Miles [mailto:firstname.lastname@example.org]
Sent: Monday, November 16, 2009 2:01 PM
Subject: Moffett v. Life Care Centers of America
I am pleased to inform you that in a unanimous opinion issued today, the Colorado Supreme Court has upheld the Court of Appeals decision in Moffett et al. v. Life Care Centers of America to the effect that a person holding a validly executed Power of Attorney from an incapacitated nursing home resident may enter into a binding pre-dispute arbitration agreement for the purposes of resolving a medical care dispute with a health care provider. You will recall that an amicus brief was filed by this office on behalf of the Colorado Health Care Association, the American Health Care Association, the National Center for Assisted Living and The Alliance for Quality Nursing Home Care supporting the proposition that under Coloradoâ€™s Health Care Availability Act (â€œHCAAâ€), generally allowing for binding pre-dispute arbitration agreements in health care settings by â€œpatientsâ€, a person holding a general power of attorney could also make such an agreement if the requirements as to the execution and disclosures of the HCAA are satisfied even though the â€œpatientâ€ may be incapacitated.
The Courtâ€™s opinion contains strong language as to the intent of the General Assembly to allow such arbitration agreements given the stateâ€™s preference for arbitration and the statutory scheme involving the authority of persons holding powers of attorney. While the Court expressly held that it would not extend its ruling to persons holding durable medical powers of attorney, its rationale underlying this decision indicates that it probably would do so in the proper case.
The case has been remanded for an evidentiary hearing on whether the facility conditioned its admission of the resident upon the signing of the arbitration agreement as this allegation was not addressed by the trial court. Under the express terms of the HCAA, a medical provider may not condition the rendering of care on whether such an agreement has been entered into.
A copy of the opinion is attached.
Fred Miles, Esq.