Due to the November 7, 2016, Mississippi district court order granting an injunction against the Centers for Medicare and Medicaid Services (CMS) ban on pre-dispute arbitration agreements in long-term care, nursing homes can continue to present arbitration agreements to residents and family members at admission. However, on January 5, 2017, CMS filed a Notice of Appeal with the district court that granted the injunction preventing the CMS rule from taking effect. From there, the case moves to the federal Fifth Circuit Court of Appeals for a decision. The implications are immense, as discussed in previous articles, and there is also a distinct possibility that the new administration will not pursue the appeal or will change the rule altogether.

Interlocutory appeals after an order granting or denying a preliminary injunction are specifically allowed as a right under the U.S. Code. Unlike an appeal of a final judgment, the district court retains jurisdiction over the case and is free to move forward with other phases of the case. However, the district court granted a stay on January 9, 2017, halting the case at the district court level pending a decision on the appeal.

If the new appointees to lead CMS and HHS, Seema Verma and Rep. Tom Price, respectively, pursue the appeal, then the parties will prepare and file their briefs over the next several months. Due to the importance of this case, expect multiple amicus curiae (“friend-of-the-court”) briefs—arguments from interested parties who are not named parties to the case—from all sides of the issue by many of the same parties who filed comments to the original CMS proposed rule (see this previous article for details on some of the comments submitted) and amicus briefs in the district court.

A hearing will likely take place within a few months of the brief filing. After a hearing, there is no time limit for the circuit court to issue a decision, but most cases are decided within 11 months from filing the notice of appeal. Given the significance of this injunction and CMS’s proposed nursing home arbitration ban, we expect a decision as early as summer or fall 2017.

However, with so much at stake for both parties, that is unlikely to be the end of the road. The losing party has 90 days after entry of judgment by the Fifth Circuit Court of Appeals, or a denial of a petition for a rehearing, to petition for a writ of certiorari to the U.S. Supreme Court.

It remains to be seen, however, how adamant Rep. Price and Ms. Verma will be in pursuing the nursing home arbitration ban. It can be a partisan issue; when the rule was proposed and CMS requested comments, the fiercest opponents to binding arbitration in nursing homes were democrats. With President Trump’s pro-business stance, there is a distinct possibility that Rep. Price and Ms. Verma will not push the appeal, withdraw it altogether, or revoke (and possibly replace) that portion of the final rule. As of the date of publishing this article, the appeal remains docketed, and the record on appeal is due January 25, 2017.