Court Refuses To Enforce Optional Nursing Home Arbitration Agreement: Under Illinois law, if a nursing home arbitration provision is required for admission to a care facility then it becomes part and parcel of the health-care decision to admit the patient to the facility. In a prior appellate case, the court held that the plaintiff’s daughter had actual authority to bind her father to the arbitration provision because “[a]cceptance of the arbitration provision, an integral part of the establishment contract, was a prerequisite to admission into defendant’s facility.” However, the same appellate court case clarified that, “where the arbitration provision is optional or otherwise not necessary to gain admission to a long-term-care facility, the agent acting pursuant to a health-care power of attorney is not authorized to sign the arbitration provision and the patient cannot be bound by the agent’s action.””
In an Illinois appellate court case decided on June 5, 2023, the resident’s daughter signed an arbitration agreement at the time of admission on behalf of her mother pursuant to an Illinois statutory short form power of attorney for
health care (755 ILCS 45/4-10(b) (West 2004)). As her mother’s “attorney-in-fact,” the daughter was authorized “to make any and all decisions for [her] concerning [her] personal care, medical treatment, hospitalization and health care and to require, withhold or withdraw any type of medical treatment or procedure, even though [her] death may ensue.”
A statutory short form power of attorney for health care “authorizes the agent to make any and all health care decisions on behalf of the principal which the principal could make if present and under no disability, subject to any limitations on the granted powers that appear on the face of the form.” 755 ILCS 45/4-10(c) (West 2020). An agent may “sign and deliver all instruments, negotiate and enter into all agreements and do all other acts reasonably necessary to implement the exercise of the powers granted to the agent.” Id. The agent “is authorized to admit the principal to *** all types of hospitals, institutions, homes, residential or nursing facilities *** providing personal care or treatment for any type of physical or mental condition.” Id. § 4-10(c)(2). “[T]he general rule limits the scope of the health-care power of attorney to matters involving the principal’s health care and that the agent is given no authority over the principal’s property or financial matters.”
The parties in the present case did not dispute that the daughter was authorized to admit her mother to the nursing home pursuant to the health care power of attorney. The daughter argued that because agreeing to arbitration was not a condition precedent to her mother’s admission the nursing home, she lacked the authority to sign the arbitration agreement based on the health care power of attorney. The nursing home argued that the arbitration agreement was integral to and part and parcel of the residency contract.
The Illinois Appellate Court held: “the arbitration agreement in this case is both optional and freestanding. Section G of the admission agreement states that “Resident and Facility have entered into a separate Health Care arbitration agreement.” (Emphasis added.) While the agreements were presented at the same time, they were separately paginated and separately signed. Most significantly, the arbitration agreement states that signing the agreement is not required to receive treatment. As Riccardino testified, the arbitration agreement is optional, and about 85% of residents refuse to sign it. Therefore, signing the arbitration agreement was not an act “reasonably necessary to implement the exercise of” Kathy’s health care power of attorney … Since Kathy was not required to sign the arbitration agreement for Mae to be admitted to Symphony or to continue receiving care, it was not “reasonably necessary” for Kathy to sign the arbitration agreement to make a health care decision on behalf of Mae.”
A concurring opinion stated: “Arbitration does not do anything associated with health care. It does not check the patient’s vital signs, monitor heart rate, prevent or treat pressure sores, draw blood, set or maintain an IV, diagnose illness, or prescribe or dispense medication. Arbitration is not health care. It is about money. Arbitration is just simply not included in the agency given in a health care power of attorney (HCPOA). The patient could, of course, add it to the HCPOA, but absent that addition, it is just the worst kind of illusion for the providers to try to jam the authority to agree to arbitration into a HCPOA.”
Source Parker v. Symphony of Evanston Healthcare, LLC, 2023 IL App (1st) 220391.
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