NURSING HOMES AND ARBITRATION By Hon. James M. McGing (ret’d) This month the United States Supreme Court refused to hear an appeal of the Centers for Medicare & Medicaid Services’ (CMS) rule that prohibits Nursing Homes from requiring residents to sign arbitration agreements as a condition of admission. That leaves in place the rule and Nursing Homes can no longer require a resident or their representative to sign it. However, the Nursing Homes can ask potential residents if they would voluntarily sign it after clearly explaining it and further that it is not mandatory that they agree to sign it. CMS is part of the U.S. Department of Health & Human Services. CMS explains in its rules that “Concerns have been raised about the fairness and transparency related to both the means by which these agreements are created and the fairness of the arbitration process themselves…” and many patients are transferred directly from hospitals in ill-health and are not in a position to engage in meaningful negotiation. Long term health facilities have often required the signing of these arbitration agreements before admittance. The Illinois Appellate Court on September 30th, 2022, in the case of Calusinski v. Alden-Poplar Creek Rehabilitation & Health Care Center, Inc., 2022 IL App (1st) 220508 weighed in on this issue when it affirmed a decision by a Cook County Circuit Court Judge finding that in a Cook County case, the arbitration agreement was not enforceable as a matter of law because it was substantively unconscionable. Ms. Calusinki’s son executed the paperwork under a power of attorney. She eventually died at the facility and a lawsuit was filed alleging Wrongful Death and a Survival Action based upon Negligence. The arbitration agreement required any claims or disputes brought by plaintiff arising out of his mother’s care at the nursing home to be resolved through mediation and/or arbitration. Yet, the agreement permitted the nursing home to litigate claims against plaintiff for nonpayment of nursing home costs in a court of law. The Circuit Court Judge ruled that the parties’ arbitration agreement was substantively unconscionable, and therefore unenforceable, because it waived plaintiff’s right to statutory attorney fees without adequate consideration. The Appellate Court agreed in a unanimous opinion, finding that “an arbitration agreement is substantively unconscionable, where as here, the contract terms are so one-sided that they oppress or unfairly surprise an innocent party and there is an overall imbalance in the obligations and rights imposed by the bargain, as well as significant cost-price disparity. If an arbitration agreement is unconscionable, it is unenforceable.” If you or a loved one has been abused or neglected at a Nursing Home, call Miller McGing Law today at (773) 467-8000 and speak with former Supervising Judge James M. McGing.