No. 2--08--1005 Filed: 5-8-09 Corrected: 3-1-10

_________________________ __________

_____________________________________________ _ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

_________________________________________ __________

_____________________________ _ MARIE FOSL ER, ) Appeal from the Circuit Court by Ja nice Saxton , Attorne

y- in-Fact, ) of Wi nn eb ag o C ou nt y. ) Plaintiff-Appellee, ) ) v. ) No. 08--L--148 ) MIDWEST CARE CENTER II , INC., ) d/b/a Fa ir Oaks Re

habilitat ion and He alth ) Care Center, BRENNA KOL K, and ) TONYA NIEL SEN, ) ) Defend ants-App ellants ) Honorab le ) Ronald L. Pirrello, (The People of the State of Illinois, I ntervenor). ) Judge , Pres idin g.

______________________ __________

________________________________________________ _ Modified Upon Denial of Rehearing JUSTICE BURKE de livered

the opinion of the c ourt: Plaintiff , Marie F osler, f

iled a co mplaint ag ainst def endants, Midwest

Car e Ce nt er II, Inc., d/b/a Fair Oaks Rehabilitation and Health Care Center, Brenna Kolk, and Tonya Nie lsen, for relief under the Nursing Home Care Act (210 I LCS 45/1--101 et seq. (West 2006) ) and fo r negli ge nce . Plaintiff alleges wrongful injuries suffe red during

her stay a t defendants' long-term

care f acility, Fair Oaks R ehabilitation a nd Health Care Cen

ter (Fa ir Oaks) . As part o f the adm ission to F air Oaks , plaintiff, through her daughter, Janice Saxton, entered into a wr itten agreement. T he agreementNo. 2--08--1005

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contained a provision stating that

any disp ute ari sing fr om pl ainti ff's st ay would b e resol ved th rough arbitration, as governed by the Federal Arbitration Act (FAA ) (9 U.S.C. §1 et seq. (2000)). Defend ants answered the complaint with a motion to enforce the arbitra tion pr ovision , arguing that plaintiff

had waived her right to sue. Plaintiff responded that certain provisions of the Nursing Home Care Act nullify a resident's waiver of the rig ht to commence an action in circuit court and to a t ri al by j ur y. Faced with deciding whether the FAA or the Nursing

Home Care Act applies to the arbitration provision, the trial court denied defendants' motion based on Carter v. SSC Odin Operating Co ., LLC , 381 Ill. App. 3d 717 (200 8), in whic h the Appe llate Cour

t, Fifth D istrict, conclude d that the

FAA doe s not pree

mpt the Nursing Hom e Care A ct. Defend ants appeal, arg

uing tha t Carter was wrongly

decided and that, therefore, the trial cour t erred in denying the

motion to compel arbitration. We agree. Carter cannot be reconciled with Perry

v . Thomas , 482 U.S. 483, 96 L. Ed. 2d 426, 107 S. Ct. 2520 (1987), in which the United Sta te s Supreme Court held that the FAA preempt s statestatutes that require "that litigants be provided a judicial forum for resolving *** dispu tes." Perry , 482 U.S. at 491, 96 L. Ed. 2d at 436, 107 S. Ct. at 2526. In agre ement

with Perry

and similar decisions issued by the Court, we hold that section 2 of the FAA preemp ts th e prov isio ns of t he Nurs ing Hom e Care A ct tha t purp ort to null ify a resid ent's waiver of the righ t to comme nce an action in the circuit court and to a jury trial. We reverse the denial of defendants' motion to compel arbitration and remand the cause for furthe r procee dings consistent with this opinion. FACTS The factual background is simple and undispute d. Plaintif

f was a r esident o f Fair

Oaks from September

1, 2004, to August 17, 2007. On the date of admission, Saxton, ac ting as p lain tiff'sNo. 2--08--1005

1 Plaintiff died on July 31, 2 008. Saxton, plaintiff's surviving daughter, was appointed as special representative of the estate as the suit was converted to a

survival action. See 735 IL CS 5/13- -209(a) (West 2006); 755 ILCS 5/27--6 (West 2006). -3- authorized

representative, executed the admission agre ement, which contained the contr actual te rms fo r p la in ti ff

's st ay. The agreement

contains an arbitration section, which provides that "any dispute between you and us and

any dispute rela

ting to services rendered for a ny condition, and any dispute ar ising out of the diag nosis, treatment, or care of the Resident, including the sc ope of this arbitration clause and the a rbitrabi li ty of any

claim or dispute, against whomever made (including , to the full extent permitted by applicable la

w, third parties who are not signatories to this Agre e ment) shall be resolved by binding arbitration by

the National Arbitration Forum, under the Code of Procedure then ineffect. *** This Agreement shall be governe d by and interpre

ted under the Federal Arbitration Act, 9 U.S.C. Sections 1-16." The a rbitration section also states in bold text that "Resident understands that

the result of this arbitration agree ment is tha

t claims, i ncluding malpractice cla

ims that Resident may

have ag ainst the F acility

or its employ

ees can not be bro ught as a lawsuit in

court before a judge or jury , and agrees that all su ch claims will be resolved as described in this section." On Januar y 23, 2008, plaintiff filed a c omplaint alleging violations of the Nursing Hom e Car e Act and negligence. 1 Defend ants responded to the complaint with a motion to compel arbitration. Defend ants asserted that plaintiff

was contractually

bound by the arbitra

tion section of the admission agre ement t o resolve any dispute according to the FAA. Defe ndants contended that the FAA preempted

any provision

of the Nu

rsing H ome Care

Act that would

otherwise bar

enforcement of the contract's arbitration section. On September 26, 2008, re lying upon Carter , the trial court deniedNo. 2--08--1005

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defenda nts' motion to compel arbitration

. Defendants filed their timely notice of appeal on October 23, 2008. ANA LYSIS Onappeal, defenda

nts arg ue that th e trial c ourt err ed in deny

ing thei r mo ti on to compel arbitration. Ruling ona motion to c ompel ar bitration is injunctive and, therefore, is appealable under Supreme Court Rule 307(a)(1) (188 Ill. 2d R. 307(a) (1)). Salsitz v. Kr eiss , 198 I ll. 2d 1, 11 (2001). Where a trial court makes no factual findings and its decision is based purely on a que stion of law, the decision

to gran t or deny a motion to c ompel ar bitration is subjec t to de novo review. Vassilkovska

v. Woodfield Nissan, Inc. , 358 I ll. App. 3d 20, 24 (20 05); Ragan v. AT&T Corp. , 355 Ill. App. 3d 1143, 1147 (2005) (when a motion to compel arbitration is denied without an evidentiary hearin g, the stand

ard of r eview on appeal i s de novo ); cf. In re Marriag e of Rife , 376 Ill. App. 3d 1050, 1061 (2007) ("Under the discretionary provision of the [Declaratory Judgment] Act, the trial court 's decision whether a declaratory

judgment proceeding is proper at all is su

bject to d efere ntial, if 'searching,'review. However, nothing in the Act re qui res that a trial court's resolution of the merits of the complaint be entitled to deference. To impose such a require ment would make the trial court the primary a

uthority on

questions of law, inverting the hierarchy of lower court and higher court"). We review the trial court's decision de novo because the court heard no evidenc e an d consider ed only argume nt, which the part ies resta te on appe al. Plaintiff contends that sections 3--606 and 3--607 of the Nursing Home Care Act nullify the arbitration

provision

of the ad

mission ag

reement , in which

she purportedly

waived h er rig

ht to initiate an action in circuit cour t and to have her claims heard by a jury. Section 3--606 of the Nursing Home Care Act

provides that "[a]ny waiver by a reside

ntor his legal representative of the right to commence an action under Sections 3--601 through 3--607, whether oral or in writing , shallNo. 2--08--1005

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be null and void, and

without legal force or effect." 210 I LCS 45/3--606 (West 2006). Section 3-- 607 further provides that "[a]ny party to an ac

tion brought under Sections 3--601 through 3--60 7 shallbe entitled to a trial by jury and any wa

iver of the right to a trial by

a jury, whethe

r oral or in writi ng, prior to the commencement of an action, shall be null and void, and without legal force or effect." 210 I

LCS 45/3--607 (West 2006). Defend ants rely upon the F AA

. In 1925, Congress ena cted the FAA " 'to reve

rse the longstandingjudicial hostility to arbitration agre ements that had existed at English common law and had been ad opted by America n courts[ ] a

nd to place arbitration agreeme nts upon the same footing

as other contrac ts.' " Borowiec v. Gateway 2000, Inc. , 209 Ill . 2d 37 6, 384 (2004 ), quo ting Gilmer

v. Interstate/Johnson La

ne Corp. , 50 0 U.S. 20, 24, 114 L. Ed. 2d 26, 36, 111 S. Ct. 1647, 1651 (1991). Section 2 of the FAA provides in relevant part that "a writte n provisio n in any maritime transaction

or a contract evidencing a tra nsactioninvolvin g commerce to settle by arbitration a controve rsy thereafter arising out of such contract or transaction

*** shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the re vocationof any contr

act." 9 U.S.C. §2 (2000). Section 4 of the FAA provides for court orders compelling arbitration when one party has failed, neglected, or

refused to comply w

ith an arbitration agreement. 9 U.S.C. §4 (2000). Defend ants contend t

hat sect ion 2 of the

FAA con fli cts with

sections 3--606 and 3--607 of the Nursing Home Care Act and that, theref ore, the former preempts the latter. The preempt

ion doctr ine is bas ed on the s

upremac y c lause of

article VI of the United States Constitution, which provides that the "Laws of the United States *** sha ll be the supreme Law of the Land; and the Judges in every State shall be bound thereby , any Th ing in the Constitution or Laws of any State to the Contrar y notwithstanding." U.S. Const., art. VI, cl. 2. Thus, whe n a state law conflicts with a federa l statute, the state law is preempted under the supremacy clause andNo. 2--08--1005

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applicationof the state law is unconstitutional. Board of Education, Joliet Township High School District No. 204 v. Board of Education, Linc oln Way Community

High School District No. 210 , 231 Ill. 2d 184, 195 (2008), citi ng Crosb y v. Natio nal Fo reign Trade Co uncil , 53 0 U. S. 363 , 38 8, 1 47 L. Ed. 2d 352, 371, 120 S. Ct. 2288, 2302 (2000); see also Lorillard Tobacco Co. v. Reilly , 533 U.S. 525, 540, 150 L. Ed. 2d 532, 550, 121 S. Ct. 2404, 2414 (2001). A state statute may be pre empted three way s. First, a statute may be pre empted through the express language of a

congressional enactment. Board o f Educa tion, Joliet T ownship High School District No. 204 , 231 Ill. 2d at 1 95, ci ting Lorillard Tobacco Co. , 533 U.S. at 540-41, 150 L. Ed. 2d at 550, 1 21 S. Ct. at 2414, citi ng Cipollone v. Liggett Group, I nc. , 505 U.S. 504, 120 L. Ed. 2d 407, 112 S. Ct. 2 608 ( 1992) . Sec ond, " [a ] stat e statute may also be preempted where the 'depth a nd breadth of a congressional scheme' implies that Congress 'occupies the legislative field.' " Board of Education, Joliet Township High School District No. 204 , 231 Ill . 2d at 195, q uoti ng Lorillard Tobacco Co. , 53 3 U.S. at 541, 150 L. Ed. 2d at 550, 121 S. Ct. at 2414; see also Fidelity Fe deral Savi ngs & Lo an Ass' n v. de la C uesta , 458 U.S. 141, 73 L. Ed. 2d 664, 102 S. Ct. 3014 ( 1982)

. Third, "a statute may

be preempted where the state law pre sents a 'conflict with a con gres sional enactment.' " Board of Education, Joliet Township High School District No. 204 , 231 I ll. 2d at 195, quot ing Lorillard Tobacco Co. , 533 U.S. at 541, 150 L. Ed. 2d at 5 50, 121 S. Ct. at 2414; se e also Geier v. American Honda Motor Co. , 529 U.S. 861, 146 L. Ed. 2d 914, 120 S. Ct. 1913 (2000). Here, the part

ies focu s on the thi

rd possibi lity : conflict preemp tion. Confl ict pree mp tio n

occurs "when it is either 'impossible for a private par ty to comply

with both s ta te and federal requirements,' or 'where state law "sta nds as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." ' " Kinkel v. Cingula r Wireles s , LL C , 223 Ill. 2d 1, 18 (2006 ), quo ting English v. General Electric Co. , 496 U.S. 72, 79, 110 L. Ed. 2d 65, 74, 110 S. Ct.No. 2--08--1005

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2270, 2275 (1990), quoting Hines v. D avidowitz , 312 U.S. 52, 67, 85 L. Ed. 581, 587, 61 S. Ct. 399, 404 (1941). A

state law is an obsta

cle to a congressionalobjective, for preemption purposes, if the state law would op erate such tha t "afederal statute, when considered as a whole, would be rendered ineffective and its purpose and intended effect s frustrated ." Board o f Educa tion, Joliet T ownship High School District No. 204 , 231 Ill . 2d at 196, c itin g Crosby , 530 U.S. at 373 , 147 L. Ed. 2d a t 361, 120 S . Ct. at 229 4 (cit ing Savage v. Jones , 225 U.S. 5 01, 533, 56 L. Ed . 1182, 119 5, 32 S. Ct. 715, 726 (1912), and Hines , 312 U.S. at 67 n.20, 85 L. Ed. at 587 n.20, 61 S. Ct. at 404 n.20). Like the ultimate issue of whether arbitration should be compelled in this ca se, the un derlying issue of whether a state law is preempted by

a feder al statute is a question of law, subject to de novo review. Schultz v. Northeast Illinois Regional Commuter R.R. Corp. , 201 Ill. 2d 260, 288 (2002). Our review o f the tria

l court' s decisio n requir

es interp retation of se c tion 2 of the FAA and sections 3--606 and

3--607 of

the Nursi ng Home Care Ac t. The g oal of sta tutory interpre tation is to ascertain and give effe ct to the intent of the legislative body. The simplest and surest mea ns of meeting this goal is to read the statutory language and give the words their plain and o r dinary meani ng. A statute

must be re ad in its en

tirety , keeping

in mind the s

ubject it a

ddress es and th e legisl ature's apparent objective i n enacting it. Where the language of the statute is clear and unambig uous, it must be applied as written, without resort to other tools of statutory construction. Board of Education, Joliet Township High School District No. 204 , 231 Ill. 2d at

198. The " ultimate touchstone" of our

preemption analysis must be the intent of Congress. Cipollone , 505 U.S. at 516, 120 L. Ed. 2d at 422, 112 S. Ct. at 2617. We look to nonbinding federa l law as pe

rsuasive authority when construing a federal statute, bec ause maintaini ng uniform interpretation s is importa nt. Bowman v. American River Transportation Co. , 217 Ill. 2d 75, 91 (2005).No. 2--08--1005

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The parties correctly

agree that the statutes at issue are una mbiguous. They a

lso do not dispute that, absent preemption, the Nursing Home Care Actwould govern the admission agreeme nt and plain tiff's s tay at Fair Oaks. As to section2 of the FAA, the Supreme Court has stated, "[w]e discern only two limitations

on the enforceability

of arbitration provisions governed by the Federal Arbitration Ac t: they must be part of a written

maritime contract or a

contract 'evidencing a

transaction involving commerce' and such clauses may

be revoked upon 'grounds as e xist at law or in

equity for the re

vocation of any contract.' [9 U. S.C. §2 (20 00).] We see noth ing in the Ac t ind icati ng tha t the broad principle of enforc eability

is subject to any additional limitat ions under s tate law." Southland Corp. v. Keating , 465 U.S. 1, 10-11, 79 L. Ed. 2d 1, 12, 104 S. Ct. 852, 858 (1984). Litig ants in othe r jurisdictions have argued whether a nursing home admission agreement evidences a "transaction involving commerce" under the FAA. See, e.g. , R ainbow Health Care Center, Inc. v. Crutcher , No. 07--CV--194--JHP, slip op. at 7 (N.D. Okla. January 29, 2008) ("the admissio ns agre ements in question evidence a transaction involving interstate commer ce"); McGuffey

Healt h & Reha

bil itation Center v. Gibson , 864 So. 2d 1061, 1063 (Ala. 2003) ("the admissions agreement

had a substantial effect on interstate commerce" ). However, plaintiff does not raisethe issue in this case and, therefore, plaintiff has forfeited any argument on that point. See 210 Ill. 2d R. 341(h )(7) ("P oint s not argued [ in th e appel lant's brief] are waived and shall not be raised ina reply br

ief, in oral argument, or on petition for rehea ring"). Because plaintiff

forfeits the issue of whether the admission agreement involves commerc e under section 2 of the FA A, this ca se turns

on whether sections 3--606 and 3--607 of the Nursing Home Care Act are "such grounds as exist at law or in equity for the

revocation of any

contract." 9 U.S.C. §2 (2000).No. 2--08--1005

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In C arter , the Appellate Court, Fifth District, considered whether sec tion 2 of the F A A preempt s sections 3--606 and 3--607 of the Nursing Home Car e A ct, which is exactly the issue before us. At the t

ime of the

residen t's admi ssion to th e defendant 's faci lity, th e resi dent's representative executed a written " 'Hea lth Care Ar

bitration Agree ment,' " which re quired th at all disputes relat ed to t he resi dent's care at the fac ilit y be submi tted t o bin ding arbitra ti on and be governed by the FAA. Carter , 381 Ill. App. 3d at 718. The resident died, and he r representative filed

a complaint under the Nursing Home Care Act, alleg ing that the defendant had fai led to prov ide adequa te and properly

supervised care that the resident neede d. Carter , 381 Ill. App. 3d at 718. The de fendantanswer

ed the complaint by

deny ing the a llegat ions and a sserting

various d

efense s, including the defense that the lawsuit was precluded by the agreement, which require d that disputes be resolved by

binding arbitration. Carter , 381 Ill. App. 3d at 719. The defendant in Carter

argued that section 2 of the FAA pr eempted the state law contract defense of a viola

tion of pub lic policy

, becau se the public

policy expresse d in

sections 3--606 and 3--607 of the Nu

rsing H ome Care

Act does

n ot apply to al l contra

cts but spe cifical ly ta

rgets arbitration

agreements. Carter , 381 I ll. App. 3d at 721. The Carter court rejected that notion, h olding that, "because the public policy expressed in sections 3--606 and 3--607 concerns the

va li di ty, revocability, and e nforceability of

contracts generally

and d oes not specifically ta rget

ar bitrat ion agree

ments, it pr

esents a legitima te state l aw contr

act def ense of a violation o f public policy to the agreement s and so voi ds the agreement s." Carter , 381 Ill. App. 3d at 722-23. Indeed, public pol icy

can be a defense to enfor cing a c ontract . While I llinois cou rts strong ly favor freedom of contract, a court will declar e a contract void if it contravenes the public policy of this state. H&M Commercial Driver Leasing, I

nc. v. Fox Valley Containers, I nc. , 209 Ill. 2d 52, 57 (2004). Public policy

is the leg al princ iple that n o one may

lawfully do that which has the tendencyNo. 2--08--1005

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to injure the welfare of

the public. O'Hara v. Ahlgre n, Blumenfeld & Kempster , 127 Ill. 2d 333, 341 (1989). Thus, ag

reemen ts are no t void as a

gainst p ublic polic

y un less they are " ' clearly

contrar y to what the constitution, the statutes or the decisions of the courts have declared to be the public policy

or unless they [are] manifestly injurious to the public welfare.' " H&M Commercial Drive r Leasing, Inc. , 209 Ill . 2d at 57, qu otin g Schumann-Heink v. Folsom , 328 Ill. 321, 330 (1927). Inholding that the FAA does not preempt sections 3--606 and 3--607 of the Nursing Home Care Act, Carter

relies entirely upon Perry and Doctor' s Associa

tes, I nc. v. Cas arotto , 517 U.S. 681, 68 3, 134 L. E d. 2d 902, 906, 116 S. Ct. 1652, 1654 (1996). Specifically, Carter focuses on the Supreme Court's pronouncement that "state law applies and is not pre empted by sect ion 2 of t he FAA' " if that law arose to govern issues concerning the validity, revoca

bility, and enforce ability of contracts generally ," ' but that a ' "state- law princ iple that takes its meaning precisely from the fact that a contract to arbitrate is at

issue doe s not comport with" ' the text of the FA A." (Em phasis in original.) Carter , 381 Ill. App. 3 d at 72 1, quo ting Casarott o , 517 U.S. at 685, 134 L. Ed. 2d at 907, 116 S. Ct . at 16 55, qu otin g Perry , 482 U.S. at 492 n.9, 96 L. Ed. 2d at 437 n.9, 107 S. Ct. at 2527 n.9). While we a

gree t hat Perry and Casarott

o guide the analy

sis, we co

nclude that Carter mi si nt er pr et s t hi s a ut ho ri ty. In Perry , the Supreme Court held that section 2of the FA

A preempted a Cali fornia s tatute that provided a judicia l forum for action s for the collecti on of wag es " 'w ithout regar d to the existence of any pri vate agr eement to arb itrat e.' " Perry , 482 U.S. at 484, 96 L. Ed. 2d at 432, 107 S. Ct. at 2522-23, quoting Cal. Lab. Code Ann. §229 (West 1971). The Court noted that section 2

" 'is a cong

ressiona l declar ation of a

liberal f ederal policy favorin g arbit ration a greements, notwithstanding any state substantive or pr oce dural po licies to t he contrary.' " Perry , 482 U.S. at 489, 96 L. E d. 2d at 43 5, 107 S. Ct. at 2525, quot ing Moses H. Cone Memorial Hospital v. MercuryNo. 2--08--1005

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Construction Corp. , 460 U.S. 1, 24, 74 L. Ed. 2d 765, 785, 103 S. Ct. 927, 941 (1983). By ena cting section2, " 'Congress declar ed a national policy

favoring arbitration and withdrew the powe r of the states to require a judicial forum for the reso lution of c laims whic h the cont racting parties a greed to resolve by a

rbitration.' " Perry , 482 U.S. a t 489, 96 L . Ed. 2d at

435, 107 S. C t. at 2525, quoti n g Southland , 465 U.S. at 10, 79 L. Ed. 2d at 12, 104 S. Ct. at 858. Section 2 "embodies a clea r federal policy of requiring arbitration unless theagree ment to arbitrate is not part of a contract evidencing intersta te commerce," in which c ase sec tion 2 would simply not apply , or the c ontract

"is rev ocable 'upon such grounds as exist' " under state law for the revoc ation of the contract. Perry , 482 U.S. at 489, 96 L. Ed. 2d at 435, 107 S. Ct. at 2525

. The Court concluded, " '[w]e see nothing in the Act indicating that the br oad princ iple of e nforce ability

is subjec t to any

additiona l limitation s under st

ate law.' " Perry , 482 U.S. at 489-90, 96 L. Ed. 2d at 435, 107 S. Ct . at 25 25, qu otin g Southland , 465 U.S. at 11, 79 L. Ed. 2d at 12, 104 S. Ct. at 858. Years before Perry

held that the FAA preempted the Califo rnia statute, t he California appella te court co mmented o n the rea son for th e state la w's ena ctment. The court found

the purpo se of the statute to be "quite clear" in that , "[w]hile the strong public policy of the state favors arbitration

( Federico v. Frick , 3 Cal. App. 3d 872, 875), the intent of the statute is to provide in the first instance a judicial forum where there exists a dispute as to wag es." Ware v. Merrill Ly nch, Pierce, Fenner & Smith, Inc

. , 24 Cal. App. 3d 35, 43, 100 Cal. Rptr. 791, 797 (1972), aff'd , 414 U.S. 117, 38 L. Ed. 2d 348, 94 S. Ct. 383 (1973). I n other wor ds, the Ca lifornia statute w as a manifestationof the state's public policy in favor of a judicial forum fo r resolving di sputes about unpaid wages. In fact, t he enac tment showe d that the st ate's i nteres t in p rovid ing a judicial forum fo r w ag e d is pu te s, sp ec if

ic al ly, ou tw ei gh ed th e s ta te 's po li cy f av or in g a rb it ra ti on , g en er al ly.No. 2--08--1005

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Like sections 3--606 and 3--607of the Nursing Home Care Act, the California statute wa s

a manifestation of a public policy infavor of a judicial forum for resolving a certain type

of dispute, and Perry held that the FAA preempted the California statute. Perry , 482 U.S. at 489, 96 L. Ed. 2d at 435, 107 S. Ct. at 2525, quoting 9 U.S.C. §2 (2000). Neither Carter nor plaintiff reconciles how the public pol icy

underly ing the C aliforni a statute is differ ent from t

he public policy favo ring a judicial f orum unde

rly ing the N ursing H ome Care

Act. We reco gniz e that sections 3--606 and 3--607 of the Nursing Home Care Act do not mention arbitration

expl icit ly, whil e the C alifo rnia s tatut e did s o, pro vidi ng a judicial forum for actions

" 'withou t rega rd to the e xistence o f any

private agree ment to arbitrate.' " Perry , 482 U.S. at 484, 96 L. Ed. 2d at 4 32, 107 S. Ct. at 2522-23, quoting Cal. Lab. Code Ann. §229 (West 1971). We view the distinction to be inconsequential. The California statute operated no differently from sections 3--606 and 3--6 07 of the N ursing H ome Care

Act. With orwithout the mention of arbitration, the California statute still would guarantee that " ' [a]ctions to enfor ce the pr ovisions of

this article for th e collection of due and unp aid wages claim ed by an individual may be maintained.' " W are , 2 4 Cal. App. 3d at 43, 100 Cal. Rptr. at 797, q u oting Cal. Lab. Code Ann. §229 (West 1971). The phrase "without regard to the existence of any priva te agreement to arbitrate" does not mean that the statute applies only when ther e is an agreement to arbitrate. Just like the Nursing Home Care A ct, the California statute provided a plaintiff a judicial forumregardless of whether the c ontract mand ated arbitration, mediation, or some other form of non-judicial dispute resolution. Carter does not r

ecogn ize that thi s ty

pe of "pro-judic ial for

um" legislation

is the f unctional equivalent of

"anti-arbitration" legislation, which is pree mpted by section 2 of the FAA. On the other hand, Perry

recognizes this func tional eq uivalenc e, holding

that "[t]his clear federal policy

[in favor of rigorously

enforcing private arbitration ag reements] places §2 of theNo. 2--08--1005

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[FAA] in unmistak

able conflict with

Californ ia's §22 9 requir

ement tha t lit igants be p rovided a judicial forum for

resolving wage disputes. There fore, under the Supre macy Clause, the state st

atute must give way." Perry , 482 U.S. at 491, 96 L. Ed. 2d at 436, 107 S. Ct. at 2526. We di sc er n n o d if

fe re nc e b et we en th e p ub li c p ol ic y in favor of providing a judicial forum under the Calif ornia sta tute in Perry

and unde r the Nursing Hom e Care A ct here . Until the Supreme Courtis persua

ded that a state sta tute that manifests

a public policy in favor of

a judicia l forum is

a general defense to contra ct enforceability

for the purposes of the FAA, we are c ompelled to follow Perry and reje ct Carter . See County of Du Page v. Illinois Labor

Relations Board , 359 I ll. App. 3d 577, 581 (2005 ) ( the holdings of one appellate district are not automatically binding on another district, unlike a decision of our supreme court, which all appellate c ourts must follow). Our conclusi on is consistent with Cusamano v. Norrell Health Care, I nc. , 239 Ill. App. 3d 648 (1992), where the Appellate Court, Fourth District, interpreted another Supreme Court dec ision

as holding t

hat the F AA pree

mpts "an y Sta te law that denies enforcement of an arbitra tion clause i

n any contract involving

intersta te commerc e, even

when the claim at i ssue is a statutory claim base d

on the publi c policy of the Stat e." Cusamano , 239 Ill. App. 3d at 656 (1992 ), cit ing Southland , 465 U.S. at 16, 79 L. Ed. 2d at 15-16, 104 S. Ct. at 861. Our vi ew is als o consistent with Casarott o , the other case on which Carter rel ies . In Casarott o , the Supre

me Court he ld that a Montana sta tute gov erning

arbitra tion cla u ses, but not contracts in general, conflicted with the FAA and was, therefore, pre empted. Casarott o , 517 U.S. at 683, 134 L . Ed. 2d at

906, 116 S. C t. at 1654. T he state statute pr ovided tha

t an arbi tration c lause

was unenfor

ceable unless it was in underlined capital letters printed on the first page of the contr act. After summarizin

g its pre vious dec isions in Perry , Southland , and other cases, the Court restated what its prior decisions had established:No. 2--08--1005

-14-

" 'States may r

egulate co ntracts, i ncluding arbitration clauses, under ge neral contract law principles and they may

invalidate an arbitration

clause "upon

such grounds as exist at law

or in equity for the revocation of any

contract." [Citati on.] What Sta tes may not do is decide that a contract is fair enough to enforc e all its basic terms (price, service , credit ), but not f

air enough to enforce its arbitra tion clau se. The [F AA] makes any such stat e policy unlawfu l, for that kind o f polic y would pla ce arbi tration c lauses on

an unequ

al "foo ting," directly contrary to the [FAA 's] language and Congr ess's intent.' " (Emphasis added.) Casarott o , 517 U.S. at 686 , 134 L . Ed. 2d at 908, 116 S. Ct. at 1655, quot ing Allied-B ruce Te rminixCos. v. Dobson , 513 U.S. 265, 281, 130 L. Ed. 2d 753, 769, 115 S. Ct. 834, 843 (1995). The Casarott

o Court held that Montana's statute "directly conflicts with § 2 of

the FAA because the State 's law c onditions the enfor ceabilit y of arbitration agreements on compliance with

a special notice requirement not applicable to contracts generally . The FAA thus displaces the Montana statute with respect to arbitration agreeme nts covered by

the [FAA] ." Casarott

o , 517 U.S. at 687 , 134 L . Ed. 2d at

909, 116 S. C t. at 1656. The Court broadly stated, " 'state

legisla tio n requiring great

er infor mation or c

hoice in t he making

of agr eements to arbitr ate than inothe r contracts is preempted' " by the FAA. Casarott

o , 517 U.S. at 687, 134 L. Ed. 2d at 909, 116 S. Ct. at 1656 , quoting 2 I. Macneil, R. Speidel, T. Stipanowich, & G. Shell, Federal Arbitration La w §19.1.1, at 19:4-19:5 (1995). Like the Montana statute in Casarott o , sections 3--606 and 3--607 prescr ibe for n ursing home resid

ents gr eater r ights in ma

king ag reemen ts to arbitrate than in other contracts, and, therefore, those sections ar e preempted by

the FAA. We a cknowledg e that "generally applicable contract defenses, such as f raud, duress, or unconscion ability , may be applied to invalidate arbitration agreements without contravening [the FAA]." Casarott

o , 517 U.S. at 687 , 134 L. E d. 2d a t 909 , 116 S . Ct. at 165 6. How ever, Ill inoi s'sNo. 2--08--1005

-15-

public policy

in favor of provid

ing a jud icial for um for cla

i ms under the Nursing Home Care Act addresses a specific contract matter--dispute resolution--which places that contract termon unequal footing among the other contract terms. See Casarott

o , 517 U.S. at 686, 134 L. Ed. 2d at 908, 116 S. Ct. at 1655 ("The [FAA] makes any such state policy

unlawful, for that kind of policy would place arbitration

clauses on an unequal 'footing,' directly contra

ry to th e [FAA 's] la nguage and Co ngress 's intent"), quoting Allied-B ruce Te rminix Cos. , 513 U.S. at 281, 130 L. Ed. 2d at 769, 115 S. Ct. at 843. Perry , Casaro tto , and similar cases illustrate how Carter runs afo ul of Cong

ress's intent in enactingthe FAA. Section 2 of the FAA " 'is a cong ressional declaration of a liberal feder al policy favoringarbitration agreements, notwithstanding any state substantive or procedural policies to the contrary .' " Perry , 482 U.S. at 489, 96 L. Ed. 2d at 4 35, 10 7 S. C t. at 2 525, q uoti ng Moses H. Cone Memor ial Hospital , 460 U.S. at 24, 74 L. Ed. 2d at 785, 103 S. Ct. at 941. Carter muffles tha t congressionaldeclar

ation. B ecause

public pol icy

informs a ll statestatutes t

o some deg

ree, one could cite Carter

for the absurd proposition that any state statute a

ttempting to rewrite a contract provision regarding dispute resolution is a "legitimate state law contract def ense of a violation of

public po li cy" ( Carter , 381 I ll. App. 3d

at 7 23) and, theref

ore, is notpreempted by se ction 2 of the FAA. Under suchan interpretation, one can hardly imagine a situation where section 2 of the FAAever would preempt a state law that addressed a par ty's ability

to agree on the method of dispute resolution. Illinois public policy favors a rbitration as a means of resolving disputes, gener

ally (710 I LCS 5/2(a) (West 2002)), and yet sections 3--606 a nd 3--607of the Nu

rsing H ome Care

Act manif

est a contrary public policy in favor of

providing nursing home residents a judicial forum, including a trial by jury. The incong

ruity illustrates how sections 3--606 a nd 3--607 did not "ar[i]se to govern issues concerning

th e v al id it y, r ev oc ab il it y, and enforc eability

of contr acts gener ally ." (Emphasis added.)No. 2--08--1005

-16-

Perry , 482 U.S. at

493 n.9, 96 L. Ed . 2d at 437 n.9, 107 S. Ct. at 2527 n.9. One could argue that sections 3--606 and 3--607 are not directed toward " any

contract" (see

9 U.S.C. §2 (2000) ), beca use they apply only

to a contract between

a nursing home and i

ts reside nt: two par

ties defi ned narr owly by statute. In Southla

nd , the S upreme Co

urt consi dered w

hether t he FAA preempte d the Calif ornia Fra nchise Investment L aw, which required judicial consideration of claims broug ht unde r tha t statute. The Court

st at ed , " a p ar ty may

assert g eneral

contract defens es such a s fraud t o avoid enforcement

of an arbitration agreement. We conclude however, that the defense to arbitration found inthe Cali fornia F ranchise Investment Law is not a ground that exists at law or in equity 'for the revocation

of any contract' but

merely a grou nd that exist s for the revocation of arbitration provisions incon tr acts subject to the California Franchise I nvestment Law ." (Emphases added.) Southland , 465 U.S. at 16 n.11, 79 L. Ed. 2d at 16 n.11, 104 S. Ct. at 861 n.11. Southlandholds that a statutory defense to arbitration provisions, like sections 3--606 and 3--607 of the Nursi ng Home Care Act, is nota ground that

exists for the revocation of any contract and, therefore, is pree mpted by section 2 of the FAA. However, Southlanddoes not explain whet her a sta tuto ry defe

nse to arbitration provisions is preempted becaus e (1) the s ta tute appl ies to arb itration provisions rather than to al l contractual terms; (2) the statute a pplies toa specific ty

pe of contract, like nursing home admission agree ments; or ( 3) both. U

nder the facts of this case , we nee d not deci de wheth er the F AA would preempt a statutory defe

nse to arbitration provision s in co ntracts generally, since the challenged sections of the Nursing Home Care Act involve both arbitra tion agree ments and

a specif ic type of contract. However, we note that Rainbow construed Southlandto hol d that a statutory defense to arbitration

provisions is preempted because the statute app li es t o a s pec ifi c typ e of con tra ct. InNo. 2--08--1005

-17-

Rainbow , the United States District Court for the Northern District of Oklahoma considered whether section2 of the FAA pre empte d Okla homa's Nursing Home Care Act. Sections 3--606 and 3-- 607 of the Nursing Home Care Act are virtually identical to the Oklahoma statute, which provided that

" '[a]ny party to any

action brought under this section shall be entitled to a trial by jury and a

n y waiver of the right t o a tri al by a jur y, whethe r oral or in w riti ng, prior to the commencement of an action, shall be nul l and void, and wi thout legal f orce or effect.' " Rainbow , slip op. at 1, quoting Okla. Stat. tit. 63, §1--1939(E) (____). The court held that "[t]he Oklahoma statute thus invalidates arbitration

agreements in a specific ty pe of contracts--those involving nursing home care. Therefore, the second limitation on the reach of the FAA [that arbitration clauses may

be revoked

upon grounds

as exist at law

or in equi ty f or the re vocation of any contrac t] does not

apply." Rainbow , slip op. at 3. PETITI ON FOR REHEARING OnMay 8, 2009, this court issued its opinion in this case . On June 1, 2 009, the Sta te petitioned

for leave to intervene and mo ved fo r an ex tensi on of t ime t o file a peti tion for reh earing. Based on defendants' noncompliance with Supreme Court Rule 19 (210 Ill. 2d R. 19), weallowed the State to intervene and to file a petition for rehearing. Rule 19(a) provides in re levant part that "[i]n any ca use or proceeding in which the constitutionality or preemption by fe deral law of a statute, ordinance, administrative regulation, or other law affecting the public intere st is raised, and to which actionor proceeding the State or the political subdivision, agenc y, or office r affe cted is not already

a pa rt y, the litigant raising the constitutional or preemption issue shall serve an appropriate notice thereof on the Attorney

Genera l, State' s Attorne

y, m unicipal counsel or agen

cy attorne y, a s the cas e may be." 210 Ill. 2d R. 19(a). The purpose o f the notif

icati on requirement is to afford the State, political subdivision, agency , or officer, as the case may be, the opportunity, but

not the obligation,No. 2--08--1005

-18-

to interve ne in the c ause or proceeding for the purpose of defending the law challeng ed. 210 Ill. 2d R. 19(c). Rule 19(b) requires the notice to identify the particular statute, ordinance, reg ulation, or other law, and to briefly

describe the nature of

the const itutional or preem

ption cha llenge . 210 I ll. 2d R. 19(b). The notice shall be served at the time of sui t, ans wer, or count erclai m, if t he chal lenge is raised at that

level, or promptly afte

r the constitutional or preemption question arises as a result of a circuit or reviewing court r uling or judgment. 210 Ill. 2d R. 19(b). Intheir motion to compel arbitration, defendants argued the fe deral preemption ofthe antiarbitration

provisions of the Nursing Home CareAct, thereby triggering the

notification requirement of Rule 19. Defendants did not notify the Attorney

General of their preemption arg ument at any time during the proceedings in the trial court, and thus did not comply with Rule 19. However, the appella te court has the discre tion to permit late compliance with the rule ( In re Marriage of Rosenbaum-Golden , 381 Ill. App. 3d 65, 71 (2008) ), and we accompl ished this

by a llowing t he State to intervene and to fu lly a rgue it s cla ims in a pet

ition for r eheari ng. The State doe s not advoc ate forfeiture of defendants' preemption argument as a sancti on for the Rule 19 vio lation, bu

t the State has not offered any

new argument that

would cause us to re ac h a di ff er en t c on cl us io n. Ac co rd in gl y,

we do notdeviate

from our analy sis of the preemption issue upon our consideration of the petition for reh earing. The State raises three novel arguments to support plaintiff's position that the anti-arbitration provisions of

the Nursing Home Care Act invalidated her c ontractual waiver. First, theState argues that the FAA does not ap ply becaus e Fair Oaks failed to prove that the admission ag reement involved interstate commerce. Second, theState argues that sections 1395 and 1396 of the Social Security Act (SSA)(42 U.S.C. §§1395, 13 96 (2006) ) trump the FAA. Third, the State argues thatNo. 2--08--1005

-19-

the Health Care Arbitration Act (710 I LCS 15/1 et seq. (West 2008)) governs the arbitration agree ment. We re

ject ea ch arg ument for the follow

ing rea sons. A. Interstate Commerce Plaintiff has for feited any a rgument regarding

whether the admission agreement involves intersta te commerc e, but the

State argues that point in the petition for rehearing. The State does not seek a remand to further develop the recor d in the trial court. Instead, the State ar gues that th e evidence already

in the record does not

show that F air

Oaks was engage d in interstate commerce at the time plai ntiff was a resident. We disagree. Sheila Story , the administrator of Fair Oaks, filed

anaffidavit stating that (1) Fair Oaks has r eceived and conti nues to receiv e Medica

re and Me dicaid pay ments for s e rvices provided to approximately 15% of the residents; (2) Fair Oaks rece ived out-ofstate insurance pay

ments as well as Medicare pa ym ents on behalf of plaintiff; and (3) Fair Oaks purchas es, and has purchas ed in t he past, medical equipment, medical supplies, and over-the-counte r medicationfrom ven

dors outsi de I llinois. The State does not cite any e vidence in the record to rebut the aff idavit. The Rainbow court he ld that "t he FAA r eaches the broa dest amou

nt of comme

rcial ac tivity allowed by the Constitution -- which can include a local bus iness buying supplies fr om a company procuringthose supplies from out of state." Rainbow , slip op. at 4. The court further noted that the nursing home in

that cas e was be st chara

cterized as a business provi ding ce rtain goods and services to its customers for a fee. Rainbow , slip op. at 5. The court rejected the notion thatthe admission agree ments in that case did not involve interstate commercesimply because the fac ility

provided its goods and services wholly within Oklahoma. Rainbow , slip op. at 5. The court emphasize d that, when a person chose the facility as the p rovide r of his or her nursing home care, tha t person was enteringinto an ag

reemen t with the f

acility whereby the facility was to provide that person

with food,No. 2--08--1005

-20-

medicine, shelter, and medical care, among other things. Rainbow , slip op. at 5. Noting that the food, medicine, and

durable medical supplies used by the facility must come fr

om somewhere, the court found that the facility obtained those mate

rials fr om vendors in Texas, Kentucky, Mar yland, and other states. Rainbow , sl ip op. at 5. Under those circumstances the court held that " the admissions agreem ents in question evidence a transaction involving interstate co mmerce." Rainbow , slip op. at 7. Stor y's unrebutted affidavit leads us to the same conclusion as the one re ached in Rainbow : the admission agreement in this case involved interstate commerc e, and theref ore, the FAA app lies. Our conclusi on is in ag

reemen t with those

of the supremecourts of other states. See McGuffey , 864 So. 2d at 1063 (Alabama Supreme Court held "the [nursing home ] admission[s] agreement had a substantial effec t on inters tate commerce" ); Vicksburg Partners, L .P. v. Stephens , 2004--CA-- 01345--S CT (¶10) (Miss. 2005) ("We ha ve th us endorsed the undisputed province of the Federa l ArbitrationAct" in n

ursing home contr

act cas es); In re Nexion Heath at Humble, I nc. , 173 S.W.3d 67, 69 (Tex. 20 05) ("b ecause 'commerce' is broadly

construed, the evidence of Medicare pay ments [to the facility on

the patient's behalf] is sufficient to establish interstate commerce a nd the FAA's application in this case"). B. Social Security Act The Sta te next argues that the SSA trumps the FAA because the SSA reg ulates nursing homes that rec eive Med

icare a nd Medica

id funds, and

the SSA states that it does not limit remedies available at common

law for substandard care. The State cites sections 1395i--3 and 1396r of the SSA, which regulate nursing homes that re ceive payments under Me dicare and Medicaid. 42 U.S.C. §§1395i--3, 1396r (2006). The remedie s for subs tandard care or treatme nt of nurs ing home

residen ts are "i n addition

to those ot

herwise availab le under

State or Federal law and shall not be construedNo. 2--08--1005

-21-

as limiting

such othe

r remed ies, including any

remedy a vailable to an

individual at common law." 42 U.S.C. §§1395i--3(h)(5), 1396r(h)(8) (2006). TheStat e inte rpret s thi s prov isio n as Co ngress 's intentto abrogate FAA pree mption and to retain a nursinghome resident's right to a jury trial des pite any cha llenge or waiver. The FAApresumptively g overns all agr eements evidenc ing tra

nsaction s involving

intersta te commerce, but Congress can selectively preempt the FAA by

enactingsubsequent laws that either explicitly preempt or are wholly

inconsistent with the FAA. Rainbow , slip op. at 7. " 'I f Congr ess did intend to limit or prohibit waiver of a judicial forum for a particu lar clai m, such an

intent will be deducible from [the statute's] text or legislative history *** or from an inherent conflict between arbitration

and the stat ute's underlying purpo ses.' " Rainbow , slip op. a t 7, quoting Shearson/American

Express, Inc. v. McMahon , 482 U.S. 2 20, 227, 96 L. Ed . 2d 185, 19 4, 107 S. Ct. 2332, 2337-38 (1987). The State has failed to identify- -and we are unaware of--any congressional command in the SSA to

overrid e preem ption by the FAA . The SSA do es not cle arly in dicate it s inten tto overr

ide the F AA in subst

andard c are ca ses such a s this one, and we do not take i

t upo n

o urselves to do so. Moreover, there is no inherent conflict between a rbitration and the SSA' s underlying

purposes. Rainbow , slip op. at 7.

C. Health Care Arbitration Act Fi na ll y, the State

argue s that, even if the FAA preempts the anti-arbitra tion provisions of the Nursing Home Care Act, sec tion 9(c) o f the Health Care Arbitration Act gover ns the admission agree ment. Among other th ings, section 9(c) provides that "no health ca re arbitration agreement shallbe valid after 2 y

ears from the date of

its execution ." 710 I

LCS 15/9(c) (We st 2008). T he State argues that section 9(c) invalidates the arbitra tion cla use of the

admission a

greement beca

use plain tiff's claim arose after thetwo-year limitations periodexpired. The admission agreement wasNo. 2--08--1005

-22-

signed on September 1, 2004, plaintiff was a resident of Fair Oa ks until August 17, 2007 , and plaintiff filed her complaint on January 23, 2008. The State con

tends tha t section 9 (c) is no t jurisdic tional or d oes not cr

eate a t h reshol d prereq uisite to a valid arbitration agreement and that therefore section 9(c) is not incompat ible with the FAA. Further, theState argues that states still are free to re gulate arbitration contracts, and the State cites cases that allow for limitations periods for appealing arbitration decisions. However, the cases upon which the State relies do not support its position. Section 9( c) of the

Health Care Arbitration

Act does not purport to regula te the arbitration provision of pla inti ff's admission a greement; section 9(c) would invalida te it. The FAA applies for purposes of determining the enforcea bil ity of an arbitra

tion agreement that might otherwise be invalid under state law. Joseph v. Advest, Inc. , 906 A.2d 1205, 1209 (Pa. Supe r. 2006). As di scussed, courts may not invalidate a rbitration agreements under state laws that a pply only t o arbitration

provisions. Casarott

o , 517 U.S. at 687, 134 L. Ed. 2d at 909, 116 S. Ct. at 1656 (the FAA displaces a state statute that "directly conflicts with §2 of the FAA because the State's law c onditions the enforceability

of arbitration agreements on compliance with a special notice requi re ment not applica ble to contra

cts generally "). The State ar gues, w ithout cita tion to rel evant au

thority, that only provisions that present a barrier to entering into arbitration agreements are pre empted by the F AA. However, a state statute that invalidates certain ar bitration agreements is preempted by the FAA. CONCLUSIO

N Inconclusion, we hold that p laintiff 's clai ms are su bject toarbitration under the FAA. The Supreme Court has declared "only two limitations on the enforc eabi lity of arbitration provisions governed by t he Fede ral Arbi tration A ct: they

mu st be part of a written maritime contract or a contract 'evidencing a transac

tion invo lving commerce' and such c lauses may be r evoked uponNo. 2--08--1005

-23-

'grounds as exist at law or in equity for the revocation

of any cont ract .' [9 U.S.C . §2 ( 2000) .] We

see nothing in the Act indicating that the broad principle of enforc eability

is subjec t to any additional limitations under Stat e law." Southland , 465 U.S. at 10-11, 79 L. Ed. 2d at 12, 104 S. Ct. at 858. First, plaintiff

has forf eited the issue of w

hether t he nursin g homeadmission a

greement is a contract evidencinga transa

ction invo lving commerce. Also, we r eject the State's argume nt in its petition for rehearing that the recor

d lacks sufficient evidence of interstate commerce

. Second, we hold that the judicial forum provisions of sections 3--606 and 3--607 of the Nursing Home Care Ac t are not grounds as exist at law or in equity for t he revocation of any

contract. Furthermore, we re ject the Stat e's assertions that

the SSA trumps the FAA and that the Health Care Arbitration Act governs the arbitration

agree ment. For

these re asons, the

order of th e circuit cour

t of Winneb ago Coun

ty is reversed and the cause is remande d for proceedings consistent with this opinion. Reversed and remanded. JORGENSEN, J., concurs. JUS TICE O'MA LLEY, speci ally conc urrin g: Iwriteseparately

to clarify a

point regarding the FAA' s mandate that arbitration provisions cannot be revoked "save upon such gro unds a s exi st at law or in equity for the revocation of any contract." 9 U.S.C. §2 (2000). The majorit y, a nd the Supr

eme Court , have sta

ted that th

is qualification

is no t m et wh er e t he ar bi tr at io n r es tr ic ti on at is su e a pp li es on ly t o a sp ec if ic typ e of contract, as opposed to " any contract." (Emphasis in original.) See slip op. at 16, qu otin g Southland , 465 U.S. at 16 n.11, 79 L. Ed. 2d at 16 n.11, 104 S. Ct. at 861 n .11. That is basica lly true--a statutory provision

that appl ies only

to a certain typ e of cont

ract nor mally cannot be a "ground[] as exist[s] at law or in equity for the revocation of any

contract." 9 U.S.C. §2 (20 00). Ho wever, I would add two caveats.No. 2--08--1005

-24-

First, even if a

statute pu rports to a pply to all ty pes contr acts, it do es not nec essarily meet the FAA's exception. The purpose of the FAA is to " 'plac e arbitration agre ements up on the same footing as other contracts.' " Borowiec , 209 I ll. 2d at 3 84, qu otin g Gilmer , 50 0 U. S. at 2 4, 1 14 L. Ed. 2d at 36, 1 11 S. Ct. at 1651; slip op. at 5; cf. Casarott o , 517 U.S. at 686, 134 L. Ed. 2d at 908, 116 S. Ct. at 1655 (the FAA bars " 'decid[ing] that a contra ct is fair enough to enfor ce all its basic terms (price , servic e, cred it), but no t fair en

ough to e nforce its arbitration clause' "), quot ing AlliedBruce Terminix Cos

. , 513 U.S. at 281, 130 L. Ed. 2d at 769, 115 S. Ct. at 843. A state statute that universa lly bars enforc ement of

arbitra tion provi sions, eve

n though it applies to

all contr acts, wil l nonetheless still run afoul of the FAA . Second, even a statutory provision that applies only to a cer tain type of contra

ct may invalida te arbitr ation ag reemen ts on "gr ounds as exist

at law or in equity for

the revocation of any contract." 9 U.S.C. §2 (2000) . For exa mple, a sta

tute appl yin g only to nursing

home contracts could say that arbitration provisions entered into under duress are invalid. Such a statute would not run afoul of the FAA, pr

ecisely because it would confine its a

nti-arbi tration pr ovision to ground s as exist at law or in equity for the r evocati on of any

contract. The purpose o f the FA

A is that it

prohibits l aws that s ingle out arbitration agreements from other contracts, not that

it prohibits laws thatsingle out arbitration agreements in some contra cts and not others. The Supreme Court's reasoning in footnote 11 of Southlandaccord s with that purpose only if qualified by

the two caveats I ra

ise above.