Residents of senior living centers are cared for under a confusing set of laws. In Illinois, it is currently less difficult to sue a Nursing Home than it is to sue a Assisted Living Facility because the former is held to standards under the Illinois Nursing Home Care Act, and the latter is not.
One of the purposes of the INHCA law was to establish that mandatory arbitration clauses residents were required to sign as a condition of their entry to the facility were considered to undermine the purpose of the law. Because it was mandatory for residents and their families to sign confusing nursing home contracts on admission to a nursing home, the legislature decided a law to protect vulnerable seniors was needed.
The Illinois Nursing Home Care Act was intended to protect residents from exploitation by nursing homes and their parent corporations. The Centers for Medicare and Medicaid Services (CMS) implemented a new rule that prohibited federal funds for nursing homes that enter into binding arbitration agreements with residents. However, in a U.S. District Court in the Northern District of Mississippi, an order was entered that found that the CMS did not have authority to enact the mandate without statutory authority.
The U.S. District Court order was granted the power to clarify this confusion in early November 2016. CMS introduced the rule in September 2016 after allegations that nursing homes bury arbitration clauses in the fine print of admission contracts and prevent residents and their families from seeking justice in state courts in the event of abuse or neglect.
The lawsuit brought in the Northern District of Mississippi included the trade group American Healthcare Association. The nursing home groups that brought the case argued that the rule of CMS exceeded its regulatory authority. Because most arbitration agreements deny a resident to the right of attorney fees and costs that are allowed under the Illinois Nursing Home Care Act, arbitration clauses weigh heavily in favor of the nursing home and its corporate owners.
In arbitration, a nursing home resident would not be denied the public proceeding that a civil lawsuit would allow, as a personal injury lawyer can tell you. Unfortunately, Assisted Living Facilities are not governed under the Illinois Nursing Home Care Act. This means that loved ones do not receive attorneys fees during legal actions, and makes the decision to sue them far more risky. Sometimes it comes as an issue that a spouse, loved one, or family friend has signed the resident into the facility as their legal decision maker.
Accordingly, the Illinois Appellate Court found that a signature from a substitute decision maker carries no legally binding weight as to arbitration on her personal claims against the nursing home under either the Wrongful Death Act or the Family Expense Act. Illinois lawyers and Illinois nursing home residents should be aware of the conflicts in the law regarding arbitration clauses. Nursing homes continue to push for application of arbitration rather than lawsuits in Illinois courts.