v Rowan Inc

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
January 28, 2021

2021COA7

No. 19CA1211, Johnson v Rowan Inc — Health and Welfare —

Health Care Availability Act — Agreement for Medical Services;

ADR — Arbitration

A division of the court of appeals considers for the first time

whether a health care provider substantially complies with

section 13-64-403, C.R.S. 2020, of the Health Care Availability Act

if it (1) fails to provide a patient with a written copy of an arbitration

agreement that the patient has signed or (2) itself fails to sign the

arbitration agreement. Applying the supreme court’s analysis in

Colorow Health Care LLC v. Fischer, 2018 CO 52M, 420 P.3d 259,

the division concludes that a health care provider that either does

not provide the written copy of the arbitration agreement to the

patient or does not sign it fails to substantially comply with the Act
and, as a consequence, its arbitration agreement is unenforceable

against the patient.
COLORADO COURT OF APPEALS 2021COA7

Court of Appeals No. 19CA1211
City and County of Denver District Court No. 18CV33463
Honorable Ross B. Buchanan, Judge

Patricia Johnson, individually and as heir at law of Christal Johnson,
deceased; and Randall Johnson, individually and as heir at law of Christal
Johnson, deceased,

Plaintiffs-Appellees,

v.

Rowan Incorporated, a Colorado corporation; Jay Moskowitz; and QP Health
Care Services LLC,

Defendants-Appellants.

ORDER AFFIRMED

Division VI
Opinion by JUDGE LIPINSKY
Pawar and Martinez*, JJ., concur

Announced January 28, 2021

Law Offices of J.M. Reinan, P.C., Jerome M. Reinan, Jordana Griff Gingrass,
Denver, Colorado, for Plaintiffs-Appellees

Messner Reeves LLP, Kendra N. Beckwith, Doug C. Wolanske, Mary Byrne
Fletcher, Elizabeth K. Slinas-Van Orman, Denver, Colorado, for Defendants-
Appellants

Levin Sitcoff, PC, Nelson Waneka, Dener, Colorado, for Amicus Curiae Colorado
Trial Lawyers Association

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
¶1 Randall and Patricia Johnson were handed a stack of forms

when they admitted their seriously ill adult daughter, Christal, to

Rowan Community, a long-term care facility. The Johnsons signed

a number of those documents that day at the request of Rowan

Community’s social services director. One of those documents was

an arbitration agreement (the agreement).

¶2 Following Christal’s death less than two months later, the

Johnsons, individually and as Christal’s heirs, sued Rowan

Community’s owner — Rowan Incorporated — and two other

defendants — Jay Moskowitz and QP Health Care Services LLC

(collectively, Rowan) for wrongful death, among other causes of

action. Rowan moved to compel arbitration based on the language

of the agreement. The Johnsons argued that the agreement was

unenforceable for two reasons — because a Rowan Community

representative had not countersigned it and because Rowan

Community had allegedly not provided them with a written copy of

the agreement, in violation of provisions of the Health Care

Availability Act (the Act), §§ 13-64-101 to -503, C.R.S. 2020. In a

written order, the district court agreed with the Johnsons and held

1
that the agreement was unenforceable. Rowan filed this

interlocutory appeal.

¶3 We decide that, under the Act, Rowan Community cannot

enforce the agreement because it did not substantially comply with

the Act’s requirements that a health care provider (1) give the

patient a written copy of any arbitration agreement he or she signs

and (2) itself sign the arbitration agreement. For these reasons, we

affirm the district court’s order.

I. Background

¶4 Christal Johnson had a brain tumor and other serious health

conditions. The Johnsons decided to place Christal in a long-term

care facility when they were no longer able to care for her on their

own. The Johnsons selected Rowan Community, a skilled nursing

facility, to provide their daughter with round-the-clock care.

¶5 On the day of Christal’s arrival at Rowan Community, the

Johnsons met with Rowan Community’s social services director,

Tammy Gleisner, to complete the admission process. Gleisner

presented the Johnsons with what Mr. Johnson described as an

“inch-and-a-half worth of papers” for them to sign as Christal’s legal

representatives. Either or both of the Johnsons signed the

2
documents, including the agreement, during their meeting with

Gleisner. Neither Gleisner nor any other representative of Rowan

Community signed the agreement, however. In addition, the

district court found that Gleisner did not provide the Johnsons with

a written copy of the agreement.

¶6 Christal was hospitalized three times shortly after her

admission to Rowan Community. She died during the third

hospitalization.

¶7 The Johnsons filed suit against Rowan Community’s corporate

owner, its management company, and those companies’ individual

owner, manager, and operator for negligence resulting in wrongful

death, violation of the Colorado Consumer Protection Act, fraud and

fraudulent nondisclosure, and civil conspiracy.

¶8 Rowan’s attorneys informed counsel for the Johnsons that the

Johnsons had signed the agreement at the time Christal was

admitted to Rowan Community and provided a written copy of the

agreement to the Johnsons’ counsel. The copy of the agreement

provided to the Johnsons contained Mr. Johnson’s signature, but

was missing the signature of a representative of Rowan Community.

The Johnsons asserted that they had not seen the agreement

3
before. Through their counsel, the Johnsons attempted to exercise

their right to rescind the agreement pursuant to the agreement’s

rescission clause. Rowan responded that the Johnsons had waited

too long to rescind the agreement and were therefore bound by its

terms.

¶9 Rowan moved to stay the Johnsons’ case and compel

arbitration based on the terms of the agreement.

¶ 10 The district court conducted an evidentiary hearing at which

Mr. Johnson and Gleisner testified. Mr. Johnson testified that he

did not recall discussing the agreement with Gleisner, signing it, or

receiving a written copy of it, and that he had not intended to waive

his and his wife’s right to a jury trial. Gleisner testified that she

discussed the agreement with the Johnsons and that her failure to

sign the agreement was “an oversight.”

¶ 11 Following the hearing, the district court entered an order

denying Rowan’s motion. After finding that Mr. Johnson was more

credible than Gleisner, the court further found that Rowan

Community had not provided the Johnsons with a written copy of

the agreement. After considering the supreme court’s analysis of

the Act in Colorow Health Care, LLC v. Fischer, 2018 CO 52M, 420

4
P.3d 259, the court concluded that, because Rowan Community

failed to sign the agreement and provide a written copy of the

agreement to the Johnsons, “the Agreement does not substantially

comply with [the] statutory requirements of C.R.S. § 13-64-403,

[C.R.S. 2020] and thus, . . . is invalid.”

¶ 12 The district court distinguished the requirements of the Act

that the health care provider sign and provide a written copy of the

arbitration agreement to the patient from the requirement of the Act

at issue in Colorow — that health care arbitration agreements

contain, in bold-faced text, a statement disclosing to the patient

that, by signing the agreement, she is waiving the right to have any

issue of medical malpractice decided by a jury or court trial. (The

parties do not dispute that the Act’s references to “patient” include

authorized patient representatives, such as Mr. Johnson, who sign

a health care arbitration agreement on behalf of the patient. For

this reason, in this opinion we do not distinguish between patients

and the authorized patient representatives who sign arbitration

agreements on behalf of the patients.)

¶ 13 The district court held that, in contrast to the health care

provider’s minimal noncompliance with the Act’s typeface

5
requirement at issue in Colorow, Rowan Community had failed to

substantially comply with the Act by neither signing the agreement

nor providing a written copy of the agreement to the Johnsons.

Applying the substantial compliance standard, the district court

held that Rowan Community’s failure to comply with the Act

adversely affected the Johnsons’ ability to exercise their statutory

right to rescind the agreement and thus rendered the agreement

unenforceable.

¶ 14 Rowan filed this interlocutory appeal pursuant to section

13-22-228(1)(a), C.R.S. 2020.

II. Discussion

¶ 15 Rowan challenges only the district court’s legal conclusion and

not its factual findings. Thus, we accept the district court’s findings

of fact and limit our review to the legal issue of whether the

agreement complied with the Act and, therefore, is enforceable

against the Johnsons.

A. Jurisdiction and Standard of Review

¶ 16 “An order denying a motion to compel arbitration is

immediately appealable.” Lujan v. Life Care Ctrs. of Am., 222 P.3d

970, 972 (Colo. App. 2009); see § 13-22-228(1)(a). We review issues

6
of statutory construction de novo. Colorow, ¶ 10, 420 P.3d at

261-62. Specifically, “[w]e review de novo the district court’s

decision on a motion to compel arbitration, employing the same

legal standards that the district court employed.” Lujan, 222 P.3d

at 972 (citing Moffett v. Life Care Ctrs. of Am., 187 P.3d 1140, 1143

(Colo. App. 2008)).

B. Colorow and the Substantial Compliance Standard
for Arbitration Agreements Under the Act

¶ 17 “Arbitration is favored in Colorado as a convenient and

efficient alternative to resolving disputes by litigation. A valid and

enforceable arbitration provision divests the court of jurisdiction

over all arbitrable issues.” Vallagio at Inverness Residential Condo.

Ass’n v. Metro. Homes, Inc., 2015 COA 65, ¶ 13, 412 P.3d 709, 713

(citation omitted), aff’d, 2017 CO 69, 395 P.3d 788. A court “may

refuse to compel arbitration ‘only upon a showing that there is no

agreement to arbitrate or if the issue sought to be arbitrated is

clearly beyond the scope of the arbitration provision.’” Id. at ¶ 14,

412 P.3d at 713 (quoting Eychner v. Van Vleet, 870 P.2d 486, 489

(Colo. App. 1993)).

7
¶ 18 Section 13-64-403 of the Act sets forth the requirements for

arbitration agreements between health care providers and their

patients. The Act addresses two principal policy objectives

concerning such arbitration agreements. First, the Act generally

“assure[s] the continued availability of adequate health care

services . . . by containing the significantly increasing costs of

malpractice insurance for medical care institutions.”

§ 13-64-102(1), C.R.S. 2020. Second, while authorizing agreements

to arbitrate health care disputes to accomplish this general

purpose, section 13-64-403 also requires that such agreements be

voluntary and “contain[] protective provisions [to] curb[] abusive

practices in obtaining agreements to arbitrate.” Moffett v. Life Care

Ctrs. of Am., 219 P.3d 1068, 1073 (Colo. 2009); see § 13-64-403(1).

¶ 19 To ensure that a patient enters into a health care arbitration

agreement voluntarily, section 13-64-403 sets forth several

requirements for arbitration agreements between health care

providers and their patients. Three of these requirements are

germane to the resolution of this appeal.

¶ 20 First, a health care arbitration agreement

8
shall have the following statement set forth as
part of the agreement: “. . . The patient has the
right to seek legal counsel concerning this
agreement, and has the right to rescind this
agreement by written notice to the physician
within ninety days after the agreement has
been signed and executed by both parties
unless said agreement was signed in
contemplation of the patient being
hospitalized, in which case the agreement may
be rescinded by written notice to the physician
within ninety days after release or discharge
from the hospital or other health care
institution. . . .”

§ 13-64-403(3). (The district court found that the agreement was

not signed in contemplation of Christal being hospitalized. As

noted above, Rowan does not challenge the court’s findings of fact.)

¶ 21 Second, the required disclosure statement must be printed in

“at least ten-point bold-faced type” immediately above the

agreement’s signature lines. The statement must read, in relevant

part:

NOTE: BY SIGNING THIS AGREEMENT YOU
ARE AGREEING TO HAVE ANY ISSUE OF
MEDICAL MALPRACTICE DECIDED BY
NEUTRAL BINDING ARBITRATION RATHER
THAN BY A JURY OR COURT TRIAL.

YOU HAVE THE RIGHT TO SEEK LEGAL
COUNSEL AND YOU HAVE THE RIGHT TO
RESCIND THIS AGREEMENT WITHIN
NINETY DAYS FROM THE DATE OF

9
SIGNATURE BY BOTH PARTIES UNLESS
THE AGREEMENT WAS SIGNED IN
CONTEMPLATION OF HOSPITALIZATION IN
WHICH CASE YOU HAVE NINETY DAYS
AFTER DISCHARGE OR RELEASE FROM
THE HOSPITAL TO RESCIND THE
AGREEMENT.

§ 13-64-403(4).

¶ 22 Third, “[t]he patient shall be provided with a written copy of

any agreement subject to the provisions of this section at the time

that it is signed by the parties.” § 13-64-403(6).

¶ 23 A health care provider may not condition the provision of

medical care services or emergency medical services on a patient’s

failure or refusal to sign such an agreement or exercise of the

statutory ninety-day right of rescission. § 13-64-403(7)-(8).

¶ 24 These provisions grant the patient a period of time to reflect on

the implications of waiving the right to have a judge or jury hear

any malpractice case against the health care provider. Further, the

provisions give the patient the ability to review the arbitration

agreement with legal counsel and, if she chooses, to exercise the

right of rescission. A provider’s failure to comply with these

provisions of the Act “render[s] the [arbitration] agreement

unenforceable.” Allen v. Pacheco, 71 P.3d 375, 381 (Colo. 2003).

10
¶ 25 In Colorow, in the course of discussing section 13-64-403(4)’s

typeface requirement, the Colorado Supreme Court broadly held

that health care providers need only substantially comply with the

Act. Although the arbitration agreement at issue in Colorow

included the required language, the section 13-64-403(4) disclosure

statement was printed in regular “twelve-point type and all capital

letters,” rather than in “bold-faced . . . font.” Colorow, ¶¶ 6, 28, 420

P.3d at 261, 264. The patient’s family contended that the variance

from the typeface requirement rendered the agreement

unenforceable.

¶ 26 The Colorow court first decided whether an arbitration

agreement must strictly comply, or only substantially comply, with

the Act to be enforceable. After determining that the text of the Act

did not shed light on the required level of compliance, the court

considered which standard best “effectuates the General Assembly’s

purpose in enacting the [Act].” Id. at ¶ 27, 420 P.3d at 264.

¶ 27 The court first noted that the purpose of the typeface

requirement is to “emphasize the required language. Emphasizing

this text encourages patients to read it and understand its

importance.” Id. at ¶ 28, 420 P.3d at 264. Significantly for our

11
analysis, the court said that, “[w]hile bold-faced text and minimum

print size are ways to draw attention to the advisement, there are

other — sometimes better — ways to do so,” such as highlighting

the language or placing it in all capital letters. Id. at ¶ 29, 420 P.3d

at 264. And, as the court pointed out, depending on the particular

font used, “strict compliance might nonetheless fail to draw

attention to the voluntariness language.” Id.

¶ 28 Concluding that the General Assembly did not “intend[] to

elevate form over function,” the court held that the purpose of the

typeface requirement — to conspicuously disclose important

information to the patient — “is better served by the flexibility

substantial compliance affords.” Id. at ¶ 30, 420 P.3d at 265.

¶ 29 The court then “examine[d] the general purpose animating the

[Act] as a whole: keeping insurance costs low for medical providers.”

Id. at ¶ 31, 420 P.3d at 265. It held that this purpose was

supported by the application of a substantial, rather than a strict,

compliance standard to the typeface requirement, which would

“send the right issues to court.” Id. at ¶ 34, 420 P.3d at 266.

Under substantial compliance,

12
agreements with only minor technical
deficiencies — those that don’t bear on
voluntariness in any material sense — will
keep parties in arbitration and avoid the costs
of full-blown merits litigation. A party seeking
to litigate the merits will have a colorable
substantial-compliance issue to litigate only
when an arbitration agreement suffers more
serious deficiencies — those that could
actually bear on voluntariness.

Id. Thus, “[p]unishing health care providers for minor

typographical deficiencies that don’t affect voluntariness wouldn’t

serve . . . the Act’s purposes.” Id. at ¶ 35, 420 P.3d at 266. But

where “more significant deficiencies . . . might affect voluntariness,

punishing providers for failure to substantially comply would

further the statute’s purpose of ensuring voluntariness.” Id.

¶ 30 For these reasons, the court concluded that “a

substantial-compliance standard is consistent with the general

purpose of the [Act], and the specific purpose of the typeface

requirements set forth in section 13-64-403.” Id. at ¶ 37, 420 P.3d

at 266.

¶ 31 After deciding to apply a substantial compliance standard, the

court considered whether the arbitration agreement at issue

substantially complied with the Act’s typeface requirement. To

13
answer this question, the court applied the test for substantial

compliance announced in Bickel v. City of Boulder, 885 P.2d 215

(Colo. 1994). Bickel teaches that, when deciding whether a party

has substantially complied with constitutional or statutory

requirements, a court should

consider factors including, but not limited to,
the following: (1) the extent of the [party’s]
noncompliance [with the requirements], (2) the
purpose of the provision violated and whether
that purpose is substantially achieved despite
the [party’s] noncompliance, and (3) whether it
can reasonably be inferred that the [party]
made a good faith effort to comply or whether
the [party’s] noncompliance is more properly
viewed as the product of an intent to mislead.

Id. at 227.

¶ 32 In applying the first Bickel factor, the Colorow court held that

the facility’s noncompliance with the typeface requirement was

“minimal.” Colorow, ¶ 40, 420 P.3d at 267. The required language

was present, separated from the rest of the text, in all capital

letters, and in a larger font than required. Id. As to the second

factor, the court held that “the purpose behind section 13-64-403

— voluntariness — is achieved despite the technical

noncompliance.” Id. at ¶ 41, 420 P.3d at 267. The arbitration

14
agreement at issue included the required disclosure language, and

there was no evidence that the patient’s representative had been

coerced into signing the agreement. Id.

¶ 33 Finally, in considering the third factor, the court held that “it

can reasonably be inferred that the Facility made a good faith effort

to comply with the statute,” as evidenced by the fact that the

required text was set apart from the rest of the language of the

arbitration agreement. Id. at ¶ 42, 420 P.3d at 267. The court

“perceive[d] no effort to mislead, such as by burying the required

text in fine print or by using a type of script that is unusually

difficult to read.” Id.

¶ 34 Thus, the court held that, despite the facility’s technical

noncompliance with the typeface requirement of the Act, it

nonetheless substantially complied with the requirement, rendering

the agreement enforceable. Id. at ¶ 43, 420 P.3d at 267.

C. The District Court Did Not Err by Finding That the Agreement
Was Unenforceable Under the Act

¶ 35 As explained below, the agreement here is unenforceable

under the more lenient substantial compliance standard. For this

reason, and because Colorow broadly held that providers need only

15
substantially comply with the Act, we do not discuss strict

compliance in this case. If Rowan Community did not substantially

comply with the Act by failing to give the Johnsons a fully signed

and executed copy of the agreement, it could not have strictly

complied with the relevant provisions of the Act.

1. Rowan Community’s Failure to Provide the Johnsons with a
Written Copy of the Agreement

¶ 36 The district court found that Rowan Community’s

representative did not provide the Johnsons with a written copy of

the agreement after Mr. Johnson signed it during the process of

admitting Christal to Rowan Community. According to the district

court, the Johnsons did not receive a written copy of the agreement

until they obtained one from Rowan’s attorneys after initiating this

litigation.

¶ 37 The district court applied the Bickel factors to find that Rowan

Community did not substantially comply with the “written copy”

requirement set forth in section 13-64-403(6).

¶ 38 In analyzing the first Bickel factor, the court held that Rowan

Community’s “noncompliance is not minimal; [it] violated a direct

16
provision of the statute by failing to provide [the Johnsons with] a

copy of the Agreement ‘signed by the parties.’” § 13-64-403(6).

¶ 39 The court determined that, under the second Bickel factor,

Rowan Community’s failure to provide the Johnsons with a written

copy of the agreement “directly circumvent[ed]” a material purpose

of the Act — to protect patients from “unknowingly and

involuntarily waiving their rights to sue in court.” Colo. Permanente

Med. Grp., P.C. v. Evans, 926 P.2d 1218, 1232 (Colo. 1996). In

addition, the court said that, “[w]ithout a copy of the written

Agreement, [the Johnsons] were unable to fully exercise their ‘right

to seek legal counsel concerning this agreement’ by not being able

to show legal counsel the Agreement, and were unable [to] fully

understand their right to rescind the Agreement.” The Act’s

disclosure requirements and right to confer with counsel regarding

an arbitration agreement are “important mechanisms” to protect

patients from involuntarily giving up their right to bring their claims

before a court and a jury.

¶ 40 Because Rowan Community did not give the Johnsons a

written copy of the agreement, the court reasoned that they “were

deprived of the opportunity to review the Agreement, a complex

17
document with statutory notices that can be problematic for lay

people to understand in the best of circumstances, at their own

pace and outside the stressful environment of an intake meeting for

their sick daughter.”

¶ 41 Regarding the third factor, while the court found “no evidence

of an intent to mislead,” or that Rowan Community acted in bad

faith, it could not find that Rowan Community made a good faith

effort to comply with the Act’s requirement that the patient be

provided with a written copy of the arbitration agreement “because

it did not ensure that [the Johnsons] received a copy of the

Agreement.” Rather, “the Agreement was buried in a stack of

papers” that Gleisner instructed the Johnsons to read and sign “in

a relatively short period of time.”

¶ 42 The district court correctly determined that Rowan

Community did not substantially comply with the Act’s “written

copy” requirement. Rowan Community’s noncompliance with this

requirement was not minimal because it failed to provide the

Johnsons with a written copy of the agreement until after the

Johnsons filed suit. Provision of a signed arbitration agreement to

the patient is integral to the Act’s purpose of ensuring that the

18
patient enters into a health care arbitration agreement voluntarily.

Unless she receives a written copy of the arbitration agreement she

signed, in many circumstances, the patient would be unable to

review that agreement’s language in a stress-free setting, discuss it

with an attorney, or contemplate the significance of waiving the

right to a jury or court trial. As a result, she may not even be aware

of her right to seek legal advice regarding the consequences of

agreeing to arbitrate and her right to rescind the agreement if she

decides, upon reflection, that she does not wish to consent to

arbitration. Moreover, without a written copy of the arbitration

agreement, the patient may not know how or when she can exercise

the right to rescind.

¶ 43 In this case, the district court specifically found that the

Johnsons “were deprived of the opportunity to review the

Agreement” after admitting their daughter to Rowan Community

and were not aware of its terms. Even if Rowan Community did not

act in bad faith by failing to provide the Johnsons with a written

copy of the agreement, the Johnsons lacked a meaningful

opportunity to consider the significance of waiving their right to a

jury or court trial and, if they decided upon reflection they did not

19
wish to consent to arbitration, to exercise their right to rescind the

agreement. Thus, even if Rowan Community acted in good faith,

that good faith alone would not make up for its noncompliance with

the “written copy” requirement of section 13-64-403(6).

¶ 44 Rowan notes that, in Colorow, the supreme court held that the

health care provider substantially complied with the Act, even

though it had indisputably violated the provision of the Act

mandating that the required disclosure statement appear in

bold-faced type. But there is a material distinction between a

provider’s use of an incorrect typeface in an arbitration agreement

and its failure to provide the patient with a written copy of the

agreement. Unlike the former noncompliance with the Act’s

requirements, the latter noncompliance is more likely to be material

to the issue of voluntariness and may have a direct bearing on the

patient’s ability to understand the significance of waiving the right

to a jury or court trial, to consider whether waiving such right is in

her best interest, and, if she decides upon reflection not to

arbitrate, to exercise her right of rescission. The failure to give a

patient a written copy of an arbitration agreement will often be a

20
“more significant deficienc[y]” than the “minor typographical” error

in Colorow. Colorow, ¶ 35, 420 P.3d at 266.

¶ 45 As Colorow made clear, while “strict consistency isn’t the

objective[,] [v]oluntariness is.” Id. at ¶ 36, 420 P.3d at 266. Here,

the voluntariness of the Johnsons’ agreement to waive their right to

a jury or court trial was not safeguarded because they lacked a

written copy of the document they needed — in any typeface — to

make a substantive decision about arbitration and exercising their

statutory right to rescind.

¶ 46 Moreover, the absence of a meaningful alternative to the

provision of a written copy of the arbitration agreement to the

patient distinguishes the Johnsons’ case from Colorow. Rowan

does not offer any alternative to providing the patient with a written

copy of an arbitration agreement, as section 13-64-403(6) requires.

Instead, Rowan suggests that, following Christal’s admission, the

Johnsons could have called Rowan Community to request a written

copy of the agreement.

¶ 47 The supreme court’s decision in Colorow rested on its

conclusion that there was a meaningful alternative to the Act’s

typeface requirement that furthered that subsection’s purpose of

21
providing notice. See Colorow, ¶ 29, 420 P.3d 264-65. The court

determined that the purpose of the Act’s bold-faced type

requirement — to “emphasize the required language” and

“encourage[] patients to read it and understand its

importance” — could be accomplished by other means, such as

“[h]ighlighting the text in a particular color, underlining it, [or]

printing it in all capital letters . . . .” Id. at ¶¶ 28-29, 420 P.3d at

264-65.

¶ 48 In contrast, Rowan’s suggestion that the Johnsons could have

called Rowan Community following Christal’s admission to request

a written copy of the agreement assumes that the Johnsons

recognized the significance of the papers they signed during their

meeting with Gleisner. This is contrary to the Act’s presumption

that a patient does not fully appreciate the consequences of signing

an arbitration agreement while in the stressful process of admission

to a health care facility. Moreover, the Act specifies that the health

care provider, and not the patient, bears the burden of complying

with the Act. See § 13-64-403(12)(a)(I).

¶ 49 In the absence of a meaningful alternative to the requirement

that the health care provider give the patient a written copy of the

22
arbitration agreement she signed, Rowan Community could not

have substantially complied with the Act when it failed to provide

the Johnson with a written copy of the agreement until after the

suit was filed.

¶ 50 Therefore, we conclude that the agreement is unenforceable

because Rowan Community did not substantially comply with the

“written copy” requirement set forth in section 13-64-403(6).

2. Rowan Community’s Failure to Sign the Agreement

¶ 51 Rowan does not dispute that no representative of Rowan

Community signed the agreement. Rowan initially contends,

however, that the absence of Rowan Community’s signature does

not preclude the formation of a contract under common law

principles. The formation of a contract between the Johnsons and

Rowan Community under common law principles is not

determinative, however, because the Act imposes more stringent

requirements for contract formation than does the common law of

contracts. Thus, we confine our analysis to the Act’s signature

requirement.

¶ 52 We agree with the district court’s conclusion that, under the

Bickel factors, Rowan Community failed to substantially comply

23
with the Act’s signature requirement, in addition to the Act’s

“written copy” requirement.

¶ 53 Under the first Bickel factor, the court found that Rowan

Community’s noncompliance with the signature requirement was

not minimal because Rowan Community directly violated a

provision of the Act by “fail[ing] to sign and execute the Agreement

as required by two sections of the [Act].”

¶ 54 The court further found that, under the second Bickel factor,

Rowan Community’s failure to sign the agreement did not satisfy

the Act’s purpose. The court explained that the ninety-day

statutory rescission period, “which is an important safeguard to

ensure that the statute’s purpose of voluntariness is effectuated,”

does not begin to run until both parties have signed the arbitration

agreement.

¶ 55 The language of the Act is unambiguous — the date of the

“signature by both parties” marks the date on which the ninety-day

rescission period begins to run. § 13-64-403(3)-(4) (emphasis

omitted). Without the health care provider’s signature, the

rescission period never commences. Thus, the purpose of the Act

that the patient have a meaningful opportunity to rescind an

24
arbitration agreement is not satisfied if the health care provider

does not comply with the signature requirement.

¶ 56 Finally, although the court found no evidence that Rowan

Community intended to mislead the Johnsons or acted in bad faith

by failing to sign the agreement, it could not find that Rowan

Community made a good faith effort to comply with the signature

requirement.

¶ 57 We adopt the district court’s thoughtful application of the

Bickel factors to the signature requirement.

¶ 58 On appeal, Rowan challenges the district court’s holding that

the Act requires both the provider and the patient to sign health

care arbitration agreements by contending that the “subsections’

reference to ‘both parties’ defines a point in time, rather than a

requirement . . . .”

¶ 59 While we acknowledge that sections 13-64-403(3) and

13-64-403(4) do not include mandatory language such as “shall,”

Rowan’s argument is unpersuasive. If the signatures of “both

parties” were not a requirement for enforcement of a health care

arbitration agreement, the language of the Act requiring that the

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patient receive a written copy of the agreement and granting the

patient a rescission period would make no sense.

¶ 60 Section 13-64-403(6) provides that “[t]he patient shall be

provided with a written copy of [the] agreement . . . at the time that

it is signed by the parties.” § 13-64-403(6). In addition, section

13-64-403(3) states, in relevant part, that the rescission period

expires “ninety days after the agreement has been signed and

executed by both parties.” § 13-64-403(3) (emphasis added). Thus,

the date on which the rescission period began to run and the date

on which it expired are inextricably linked to the date on which the

arbitration agreement was “signed and executed by both parties,”

which, in this case, never happened. Id. For this reason, like the

written copy requirement, the signature requirement was material

to the issue of voluntariness.

¶ 61 As noted above, under the Act, an arbitration agreement

between a health care provider and a patient can be voluntary only

if the patient has the right to reflect on the implications of signing

such an agreement and the right to rescind it if the patient changes

her mind about arbitration. See § 13-64-403(1). Any uncertainty

as to the date on which the rescission period begins to run

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increases the likelihood that the patient will miss the rescission

deadline. And in this case, the failure of the facility to sign unfairly

placed the burden of determining when the rescission period began

to run, and when it expired, on the Johnsons.

¶ 62 Finally, Rowan contends that the missing signature is

inconsequential because Rowan Community did not “coerce or

induce Mr. Johnson’s voluntary signature to the Agreement.”

Rowan is correct that the district court did not find that Rowan

Community took actions to coerce Mr. Johnson into signing the

agreement. But the Act does not state that health care arbitration

agreements are enforceable in the absence of evidence of coercion,

even if they do not comply with the Act’s requirements. Rather, it

assumes that some degree of coercion is inherent in the patient’s

execution of these types of agreements — which is why the Act

grants the patient a ninety-day rescission period to think over the

decision to consent to arbitrate and to confer with counsel about

the merits of arbitration.

¶ 63 This rescission period was necessary here to ensure the

voluntariness of the Johnsons’ execution of the agreement, given

the risk of coercion when a patient makes difficult health care

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decisions and the patient’s “lack of information” at the time of

signing an arbitration agreement. Colo. Permanente, 926 P.2d at

1227 n.17.

¶ 64 Because Rowan Community did not substantially comply with

sections 13-64-403(3) and 13-64-403(4), the agreement is

unenforceable.

III. Conclusion

¶ 65 The order is affirmed.

JUDGE PAWAR and JUSTICE MARTINEZ concur.

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