Most clients will explore all other available options for long-term care before pursuing nursing home placement. When nursing home care is imminent, clients will seek specific information regarding nursing homes and related matters. As a result, elder law attorneys (and general practitioners handling elder law matters) will be consulted on a variety of issues relating to nursing homes and other long-term care options. Some of the issues that elder law attorneys will be consulted on regarding nursing homes include, but are not limited to, the following: nursing home selection; review of the nursing home contract; Medicare, Medicaid, and other issues relating to the payment of long-term nursing home care and Medicaid discrimination; long-term care insurance issues; nursing home residents’ rights; and nursing home litigation. This article is designed to scratch the surface of issues relating to nursing homes by providing the practitioners with a general overview of the statutes governing nursing home residents’ rights, the attorney’s role in nursing home selection, and nursing home litigation.
In Illinois, licensed long-term care facilities are subject to comprehensive regulation under both state and federal law. The Nursing Home Care Act, 210 ILCS 45/1-101, et seq., applies to residential facilities providing nursing or "personal care" (help with any of the activities of daily living) to three or more unrelated persons. Excluded from coverage under the act are: child care facilities, hospices, Christian Science facilities, state or federal facilities, and certain small facilities for persons with HIV infection, developmental disabilities or mental illness, and facilities providing no nursing or personal care. The Nursing Home Care Act is a comprehensive statute and, in particular, general practitioners should review the sections relating to residents’ rights provisions of Article II, 210 ILCS 45/2-101 through 2-212; the transfer and discharge provisions of Article III, 210 ILCS 45/3-401 through 3-414; and the liability and private right of action provisions found at 210 ILCS 45/3-601 through 3-608.
The federal law (Title XIX of the Social Security Act, 42U.S.C. ‘1395 and ‘1396) applies only to "nursing facilities" (facilities that offer nursing care and not just personal care), and only to facilities participating in either the federal Medicare program or the federal/state Medicaid program. The Omnibus Budget Reconciliation Act of 1987 made substantial revisions to the federal law and in some respects provides greater resident protections than the Nursing Home Care Act. Most of the requirements under the federal law extend to all residents of participating facilities, regardless of the source of payment for the resident’s care.
Title III of the federal law Older Americans Act, 42 U.S.C. ‘3027(a)(12) also requires states to operate an ombudsman program for nursing home residents. In Illinois, the ombudsman program is administered by the Illinois Department on Aging and the local Area Agencies on Aging and is charged with the responsibility of investigating and resolving complaints made by nursing home residents or by another on their behalf. Additional information on the local ombudsman can be obtained by contacting the Ombudsman Program at the:
Illinois Department on Aging
421 East Capitol Avenue
Springfield, IL 62706
Practitioners should also consider and explore other statutes that may be applicable to nursing homes. There may be other state, federal or local laws providing additional protections to residents and prospective residents. For example, there are local ordinances in Chicago regulating nursing homes (Chicago Mun. Code C.136). The Americans with Disabilities Act, 42 U.S.C. ‘’12101-12213, also prohibits nursing homes from discriminating in admission based on disability and must make reasonable accommodations of residents’ disabilities. The ADA applies to all nursing homes, whether or not they receive any federal funds. The Rehabilitation Act of 1973, 29 U.S.C. ‘504 likewise prohibits discriminating against people based on their disabilities under Section 504.
Nursing Home Resident’s Rights
Practitioners should carefully review the resident’s rights guaranteed under the Nursing Home Care Act. Some of the guarantees include the following: a) the resident’s right to manage his or her own financial affairs; b) the right to retain and use personal property and to have small items of value safeguarded; c) the right to retain an independent physician and to refuse treatment; d) the right to inspect and copy medical and other records; e) the right to privacy, including privacy with visitors, for mail and phone communications, and for medical and personal care; f) the right to be free of physical or chemical restraints used for punishment or for the convenience of facilities staff and to give informed consent prior to the use of any physical restraint or psychotropic medication; g) the right to free exercise of religion; h) the right to be discharged from the facility; i) the right to present grievances without fear of retaliation; j) the right to have personal funds protected; and k) the right to be free from abuse or neglect. Residents’ rights provisions are also found in the federal law and for the most part are similar to the rights guaranteed under the Nursing Home Care Act. Pursuant to federal law, the Illinois statute governs where it is more protective. Practitioners should also note that the range of remedies for violations is broader under Illinois law.
Residents also have certain protections relating to involuntary discharge. Specifically, a resident may be involuntarily discharged from a facility only for medical reasons, for the physical safety of the resident or others, or for late payment or non-payment of the resident’s bill. Non-payment does not include a change in payment from private or other payment to Medicaid. Nursing homes must also follow detailed statutory procedures before a resident can be discharged for alleged late payment or non-payment. Facilities attempting to discharge a resident for an unpaid bill must wait 45 days after the submission of the unpaid bill and then must send a notice to the resident and responsible party requesting payment within 30 days. If payment is not received within the 30 day period, transfer or discharge proceedings may be initiated by the nursing home. The resident and responsible party must be notified by certified mail that the resident will be discharged in 21 days. The notice must also inform the resident and responsible party that if payment in full is received before the date of transfer or discharge, the resident will be permitted to remain in the facility. The resident then has the right to request a hearing, within 10 days of the notice of involuntary discharge. If a hearing is requested, the resident must be permitted to remain in the facility pending the hearing and the Department’s decision. The Department of Public Health is responsible for reviewing these matters. Nursing homes attempting to involuntarily transfer or discharge a resident for any of the other permissible reasons, must also comply with the notice provisions of the Act.
Nursing Home Selection
During the client’s process of selecting a nursing home, the attorney will often be consulted. Nursing home selection is a very personal matter, and as such, the attorney’s role should be assistive without making personal recommendations. The attorney can provide a list of nursing homes in their area, along with information as to which homes are Medicaid and/or Medicare certified. If the attorney does not have current information on each individual nursing home’s certification, the client can be directed to resources that have up-to-date information available. Pursuant to statute, the Department of Public Health is required to publish a Directory for each public health region listing facilities to be made available to the public. There are also organizations, such as the Alzheimer’s Association, Consumer Reports, and AARP, that have literature available to help clients with everything from determining when nursing home placement is necessary to nursing home selection. When clients have access to the Internet, the attorney will want to direct the client to the available resources on the Internet. Some helpful websites including information on nursing homes are:
• http://www.elderweb.com/(Eldercare Web)
• http://w.nsclc.org/(National Senior Citizens Law Center)
• http://www.hcfa.gov/(Health Care Financing Administration)
Finally, the attorney can also give practical recommendations to assist their clients in comparing nursing homes. Examples of practical recommendations include but are not limited to: carefully observing the nursing homes under consideration by making personal visits; talking to other residents and their families during visits; sampling a meal; interviewing the administrator; checking the home’s license; and contacting the Nursing Home Ombudsman for information regarding particular nursing homes. The attorney can also provide the client with a written checklist for comparing nursing homes to aid the client in making their selection.
Nursing Home Litigation
Violations of nursing home residents’ rights resulting in injuries to residents are not without redress. Complaints can be filed with any of the following: the management of the facility; the long-term care ombudsman; or with the Illinois Department of Public Health. Sometimes, however, the complaint process does not sufficiently address the personal injury suffered by the resident. As such, the elder law attorney who has counseled the resident and family regarding long-term care issues is likely to be consulted as to whether a private lawsuit should be pursued.
Nursing homes will be held to a particular standard of care under the common law to protect its residents from injuries. Certain injuries may subject nursing homes to claims of res ipsa loquitur or negligence per se. In addition to potential claims under the common law, the Nursing Home Care Act specifically provides for private causes of actions against nursing home owners for any intentional or negligent acts or omissions of their agents or employees which result in injury to a resident. The Act also encourages private enforcement by allowing residents to recover actual damages, attorney’s fees, and costs of pursuing a lawsuit, if liability is proven. Damages recovered in actions pursuant to Sections 3-601 through 3-607 of the Nursing Home Care Act will be exempt for purposes of determining initial or continued eligibility for medical assistance and cannot be considered or required to be applied toward payments of the medical services available under the Illinois Public Aid Code. The Act further prohibits waivers of the right to sue under Sections 3-601 through 3-607, and any such waiver (oral or written) shall be null and void. (See 210 ILCS 45/3-601 through 3-608.)
Accordingly, the attorney must thoroughly investigate potential claims against nursing homes to determine if there is a viable cause of action pursuant to the common law, the Illinois Nursing Home Care Act, the federal Nursing Home Reform Act, other applicable statutes, or other legal theories. Although not every injury occurring in a nursing home will be actionable, it is likely that there will be diverse legal theories forming the bases for matters actually pursued.
While many practitioners are comfortable in advising their clients on other nursing home issues, their respective areas of practice may not include litigation matters. If not, the attorney will want to either consult with, refer to, or co-counsel with another attorney experienced in nursing home litigation.
The issues relating to nursing homes are numerous and often complex. This article focuses only on providing practitioners with a general overview of the statutes regulating nursing homes and practical approaches for attorneys who are consulted on issues relating to nursing home selection and nursing home litigation. Attorneys advising clients regarding nursing home issues must invest time in familiarizing themselves with the many issues relating to nursing homes and in remaining current on those issues.
Constance Burnett Renzi is a Principal of Mickey Wilson Weiler & Renzi, P.C., Aurora. Her practice is concentrated in Elder Law. She received her Undergraduate Degree in 1983 from Illinois State University and her law Degree in 1986 from the University of Illinois. She may be reached at firstname.lastname@example.org.