May 6, 2013

Levin & Perconti Attorneys Discuss Illinois Nursing Home Care Act In Law Bulletin's Law Day Publication

by Levin & Perconti

For decades the Illinois nursing home abuse lawyers at Levin & Perconti have aided local seniors and their families following nursing home neglect. While there is slowly a growing awareness of the real need to address the rampant nature of nursing home mistreatment (thanks largely to demographic changes), we still have a long way to go before nursing home residents are treated as well as possible in all locations.

Legal accountability following preventable harm is one of the key ways to improve overall care. If poor care is a financial negative for these owners and operators, then they are far more likely to do what it takes to raise standards. It is partially with that idea in mind that the state of Illinois has a law known as the Illinois Nursing Home Care Act. The statute outlines how private community member can hold nursing home accountable for their poor care--it is a critical legal protection for all Illinoisans. Our attorneys frequent protect resident rights based on the provisions in this law.

Recently, two of our attorneys contributed to an article published in the Law Bulletin’s “Law Day” publication discussing the nature of the Illinois Nursing Home Care Act. You can download the full article in .pdf form by clicking here.

Understanding the Illinois Nursing Home Care Act
In the story, attorneys Steve M. Levin and Margaret P. Battersby Black discuss the most recent changes to this law. Their article analyzes the impact that those changes will have on civil litigation related to nursing home abuse and neglect in Illinois.

In particular, the story takes a look at a 2010 modification to the law that alters the definition of “neglect” such that more instances of inadequate care may result in legal liability. Essentially, the change eliminates the need to prove that failure to provide care caused injury by expanding the definition to include instances where injury did not directly result.

In addition, there is a “fee shifting” provision in the new law. This means that, if liability is found, then the defendant nursing home is required to pay for costs and attorneys fees. In general, all costs and fees are borne separately by each party in a lawsuit, regardless of the outcome. By changing the rules in these cases, private attorneys are now able to pursue worthy cases where clearly inadequate care is provided, but compensable injury is minimal or non-existent.

For example, in cases where basic care like bathing, nutrition, etc. is not provided, it may be difficult to show injury that would result in economic harm. Because these cases are taken on a contingency fee basis, without the possibility of clear injury it is usually difficult to pursue these worthy matters. However, by shifting the obligation of attorney’s fees onto defendants, private attorneys will more readily take on meritorious cases of obvious neglect, even if specific harm cannot be proven or has yet to occur. In many ways it is helpful to think of this change as allowing for more preventative liability--savings lives by not requiring severe injury before demanding accountability.

See Other Blog Posts:

Nursing Home Industry Continues to Insulate Itself from Civil Accountability

U.S. Supreme Court Will Not Overrule Illinois Nursing Home Arbitration Case

October 27, 2012

Settlement in Medicare Payment Rules Case

by Levin & Perconti

The vast majority of community members would prefer to "age in place" instead of moving into a long-term care facility or nursing home. Living in one's own home comes with clear benefits regarding individual comfort, freedom, and familiarity. However, there are obviously times when living at home is impossible and skilled nursing care is a necessity. The line between when the close care is mandatory and when it is not can sometimes be tricky to delineate. Many families have likely battled with one another over these issues. Does a loved one need to move into a different living environment?

Fortunately, advances in medicine and technology have made great strides in allowing more care than ever before to be received at home, without the need to move into a skilled nursing facility or a hospital. This often means that more elderly and individuals with disabilities than ever before might be able to live longer in their own homes. However, there is one complication to this extended at-home care: how is it getting paid for?

A few families have significant means and might be able to provide all the necessary care out of pocket. But the reality is that many families rely on Medicare and Medicaid support for these long-term caregiving issues. That means that specific rules created by these programs regarding what will be covered and when have very real implicatons on the lives of the hundreds of thousands of families in this situation. At times, advocates for seniors and those with disabiltiies are forced to engage in legal battles with these government entities if they feel that rules are not applied correctly or fairly to the detriment of community members.

Medicare Payment Rules
For example, the New York Times recently reported on the settement of a case filed on behalf of those with chronic conditions, including many elderly individuals and those with serious disabilties. The specific focus of the suit was Medicare rules that had been around for quite some time and required beneficiaries to show a "likelihood of medical or functional improvement" before receiving payment support for necessary care like therapy services or even skilled nursing home care. The hurdle of meeting that "likelihood" test was often high, meaning residents were denied the support they needed to pay for the care they required via the Medicare program.

A class-action lawsuit filed by elder care advocates challenged that rule and, as outlined in the story, recently reached a settlement with federal officials. Per the terms of the settlement Medicare will now pay for necessary support in order to "maintain the patient’s current condition or prevent or slow further deterioration.” This seems logical as, in many cases, the best medical plan available is to keep one's condition stable, even when long-term reversals of past harm might not be realistic.

In speaking on the matter, the senior care advocate and attorney involved in the dispute noted that, "As the population ages and people live longer with chronic and long-term conditions. [...] [T]he government’s insistence on evidence of medical improvement threatened an ever-increasing number of older and disabled people.”

In other words, after this settlement the rules will better match the actual needs of the patients and not random "likelihood of improvement" rules that often just denied the sickest patients the care that they needed.

See Our Related Blog Posts:

Nursing Home Lawsuit in Death of Resident with Dementia

State Court Finds Mandatory Arbitration in NH Cases Unconscionable

September 20, 2012

AARP Report Discusses State of Long-term Support Services

by Levin & Perconti

The changing demographics of the United States are well-known: the country is getting older. This certainly holds true in Chicago and throughout Illinois. The aging of the Baby Boomer generation and increasing longevity (due to advances in medicine) have made individuals in their 70s and 80s the fastest growing group of community members. It is incumbent upon society to take these demographics into account--particularly policymakers. Understanding the best course of action on any number of fronts--health care, taxes, transportation, accessibility, and more--requires an understanding of the actual make-up of the country.

It is from that perspective that the American Association of Retired Persons (AARP) recently published its annual report- Across the States 2012: Profiles of Long Term Services and Supports.

The full report can be accessed here.

AARP Report
This year represents the eighteenth that the AARP has issued this helpful reference guide. The goal, according to the organization is to “help inform policy discussions among public and private sector leaders in long-term services and supports throughout the United States.”

It is helpful to look at state specific information, but there were many trends picked up in the overall comparisons that may have implications down the road. For example, despite the focus on the availability of public and private support, family aid remains the most popular manner of aid to seniors. The estimated value of caregiving provided by family members is $450 billion a year--dwarfing the cost of care provided even by Medicaid (4 times larger).

In addition, the costs of care in nursing homes is often two or three times as high as care at home or in community-based settings. However, public funding for at-home or community-based care was still half that of nursing home payments.

Illinois-Specific Information
The report offers some interesting information on support services available in Illinois and how that compares with the rest of the country. Interestingly, we are near the bottom of the pack when it comes to total amount of family caregivers. We have about 129 caregivers per 1,000 community members. The national average is 137 caregivers, placing us 38th in the country. We rank 7th when it comes to total Medicaid expenditures. Yet our participation in at-home and community based services as a percentage of that spending is low. Only 34% of the payments are for those services, placing us in the bottom-third nationwide. We are even worse as a percentage of total long-term care and support payments for nursing home alternatives--ranking 46th.

Interestingly, the lower percentage of payments does not translate directly into lower numbers of individuals using at-home or community based support. In fact, we have some of the largest percentage of the total population using at home services either for disability or age related issues. In other words, the payment percentages seem low but the participation is high.

It is helpful to look at the full report to get specific details about the type of support services provided in Illinois and how that compares with other states. These sorts of analyses may prove useful in coming years as debates about how to care for our growing senior population makes more and more headlines.

See Our Related Blog Posts:

New AARP Report on Assisted Living Care

AARP Joins Antipsychotic Drug Suit

March 6, 2009

Steven Levin to Speak at NAELA Chapter Meeting

by Levin & Perconti

On March 13, 2009, Steven Levin of Levin & Perconti will speak at the National Academy of Elder Law Attorneys Illinois Chapter Meeting on Protecting the Rights of Elderly Clients in Personal Injury Matters. The presentation will take place at the law offices of D. Rebecca Mitchell in Chicago. Steve will discuss how elder law attorneys and personal injury lawyers can work together to assure that the rights of elderly clients are protected. This discussion will include how to recognize the need for a personal injury attorney, how to make referrals and work with the personal injury attorney.

For questions regarding this presentation, please click here. Registration is required for this event and space is limited to NAELA members only.

January 12, 2009

Nursing Home and Hospital Injuries and Errors May not be Covered by Medicare and Medicaid

by Levin & Perconti

The Centers for Medicare and Medicaid Services (CMS) may increase the number of events they refuse to reimburse nursing homes and negligent hospitals for carrying out. Currently nursing home residents who develop pressure ulcers and urinary tract infections are not able to have Medicare and Medicaid cover their treatment costs. This is an effort to require adequate nursing home care and to prevent nursing home abuse on elder patients. Currently, CMS is discussing the addition of hospital errors and surgical errors to the list of events that are not redeemable via insurance. If this passes nursing home residents may be impacted since many undergo pressure sore debridement in hospitals relating to the poor elder care they receive in nursing homes. To read more about the possible changes to be implemented by CMS, click here.

December 24, 2008

Nursing Home Lawsuit Leads to Constitutional Amendment Interpretation

by Levin & Perconti

A constitutional amendment has been interpreted in a way to prevent nursing home residents and their families from the ability to check nursing home records for medical mistakes and physician misconduct. The interpretation occurred after a nursing home death occurred when a resident of a nursing home choked to death while eating in the facility. Advocates against elder abuse and the decedent’s family were shocked that a court ruled they were unable to access the nursing home records that revealed the nursing home misconduct. To read more about the limitation on the ability to access records relating to elder abuse misconduct in nursing homes click here.

July 17, 2008

Illinois Funeral Home Engages in Post Death Elderly Neglect

by Levin & Perconti

An Illinois funeral home has come under scrutiny after mistreatment of an elderly individual. In this case the elderly deceased was wrongfully buried. The family of the deceased went to the funeral home but was shown another deceased individual. The family had obtained legal help to get a court order for the funeral home to undo this tragic mistake: exhume the wrongfully buried grandmother. It is unknown if the family will file a negligence suit for the emotional distress, pain and suffering and anxiety the incident caused them. Although negligent care, negligent abuse and neglect are common at nursing homes in Illinois it is rare to see such negligence continue to affect an individual in the afterlife. To read about this devastating mix-up click here.

July 9, 2008

Safety Tips to Prevent and Recognize Elder Abuse

by Levin & Perconti

Elder crimes have risen drastically across the nation. Senior abuse, senior neglect and crimes against the elderly have even caused some states to create a specific division to prosecute such crimes. Many senior victims are actually hurt by those they know. It is important for communities to stay knowledgeable about the signs to look for to determine if elder abuse is occurring, whether an abused senior is in a nursing home or not. To learn more about this growing problem which in recent years has lead to a flood of nursing home lawsuits click here.

May 1, 2008

Levin & Perconti Founder and Senior Partner John Perconti Interviewed on ABC News about Rosewood Nursing Homes

by Levin & Perconti

Levin & Perconti Founder and Senior Partner John Perconti was interviewed Chicago’s ABC affiliate about the dangers of uninsured nursing homes. The report focused on Rosewood Nursing Homes, specifically the Rosewood Inverness nursing home where a resident died after falling while abandoned in a washroom for an extended period of time. According to Perconti, the nursing home has now taken a defensive position. This case highlights the dangers of uninsured nursing homes: when a nursing home is at fault for a resident’s nursing home abuse and neglect, the victim deserves just and reasonable compensation for their injuries. An uninsured nursing home can attempt to escape responsibility. In fact, some Rosewood Nursing Homes are insured by foreign corporations that do not follow US laws and are not subject to jurisdiction in US courts.

See the video here.

March 12, 2008

Illinois Nursing Home Bill will help compensate victims of nursing home abuse and neglect

by Levin & Perconti

Today great progress was made in advancing the rights of Illinois nursing home residents and their families. The good news comes in the form of House Bill #5213, which has the potential to improve nursing home care in Illinois by demanding accountability from Illinois nursing homes and long-term care facilities as a prerequisite to obtaining and retaining a license.

Currently, 20% of Illinois nursing homes don’t carry liability insurance. This means many Illinois nursing home residents who are abused and neglected in nursing homes cannot be compensated for injuries they suffer from a nursing home's wrongdoing. Furthermore, facilities are not even required to notify residents and their families that they are uninsured.

Today, the House Human Services committee passed HB 5213 sponsored by Representative David Miller. HB 5213 provides that no person may establish, operate, maintain, offer, or advertise a long-term care facility unless they provide the Department of Public Health with proof of liability insurance in an amount not less than $1 million. HB 5213 also reinstates a provision that was removed from the statutes in 1995 that provides that a licensee shall pay treble damages (the greater of three times the actual amount of damages or $500) in addition to costs and attorney's fees when the rights of a resident are violated.

Please join advocates for Illinois' elderly in our efforts to protect the rights of Illinois nursing home residents and their families and to hold Illinois nursing homes accountable for their wrongdoing. A copy of the bill's full text can be found here.

Please contact us if you have any questions at 312-332-2872.

March 9, 2008

Illinois nursing home abuse lawsuits going to mediation

by Levin & Perconti

Those who file an Illinois nursing home abuse and neglect lawsuit will now be forced to submit the case to a mediator before moving on to trial. This new mediation mandate is part of an amendment to a new Illinois medical malpractice rule that was approved this week by the Illinois Supreme Court.

For the full article.

February 8, 2008

Kane County IL sets a good example, but elder abuse and neglect laws need to be stronger

by Levin & Perconti

Kane County, Illinois employs a prosecutor assigned mainly to cases of elder abuse including one of the most prevalent problems, financial abuse and exploitation. Kane County State's Attorney John Barsanti has said that he hopes to improve community outreach as well and that elder abuse should be viewed like child abuse, where the very vulnerable can be taken advantage of. Illinois and US laws, however, seem to do much more to protect and advocate for children than for elders. Many elder abuse attorneys and advocates across the United States argue that elder abuse and nursing home abuse and neglect laws need to be stronger.

Click here for the full article

December 12, 2007

Baby Boomers to Face a Crisis

by Levin & Perconti

It is a central healthcare issue that should be on everyone’s agenda. Who will care for the baby boomers as they get older and who will train those individuals?

This issue has begun to be addressed in Virginia under the head of the Older Dominion Project – a community initiative aimed at helping its aging residents. According to a recent study, the current population of Virginians 65 and older is about 700,000. This number is expect to double in the next 20 years. Is the same nationwide? Please offer insight as a crucial part of our population continues to grow.

Click here for more information:

October 1, 2007

Levin & Perconti commends New York Times for nursing home article in Letter to the Editor written by Steven Levin

by Levin & Perconti

Re: “At Many Homes, More Profit and Less Nursing” (article, Sept. 23, 2007)

To the Editor:

The abysmal conditions at corporate nursing homes are a case study in what happens when profits are put ahead of human beings.

In a world where Americans' civil rights are increasingly being sacrificed at the altar of big business, Congress must act to protect the vulnerable from abuse. In the case of nursing home residents, Congress could take any number of positive steps. It could, for instance, mandate that potential residents be notified if the facility is in the hands of corporate investors who have shielded themselves from liability. Or, nursing homes could be required to buy insurance that covers lawsuits arising from abuse or neglect.

Specifics aside, Congress must act to protect the most vulnerable members of society. There is simply no excuse — including the “Almighty Dollar” — for the status quo.

Steven M. Levin
Levin & Perconti (Chicago, IL)

September 28, 2007

Alliance for Quality Nursing Home Care surprisingly refuses to condemn long-term facilities who do not provide quality care

by Levin & Perconti

A statement was issued by the President of the Alliance for Quality Nursing Home Care (AQNHC) in response to the New York Times Article released on Sunday in which the AQNHC surprisingly refuses to condemn the practice of providing less than quality care while simultaneously using corporate shells to operate long-term care facilities and avoid accountability. The AQNHC, a group committed to improving the quality of long-term care nationwide, takes the unsupported position that care in America’s nursing homes is improving overall, noting that the New York Times focused their analysis on only 10% of our nation’s nursing homes.

The AQNHC does not deny that care is being sacrificed at these private equity owned homes, nor do they condemn this practice. Further, AQNHC is non-responsive to the issue of accountability where the owners of long-term care facilities - those who reap the profits - are not held accountable for bad care.

Is the AQNHC applauding this practice or not responding at all? One would expect an organization that is engaged in improving care in our nation’s nursing homes to condemn a practice by profit seekers who cut resident services and staff, decreasing the overall quality of care provided to residents.

Instead, the AQNHC lauds the profession’s “demonstrated commitment to public data disclosure,” and transparency, asserting that nursing homes make data available for potential residents to assess the quality of the facility. However, AQNHC forgets that long-term care facilities’ receipt of Medicare funds is conditioned upon reporting this data, making such reporting essentially government mandated.

In essence, the AQNHC applauds long-term care facilities who participate in a government mandated regulatory scheme with no regard for the bad care residents suffer when profits are put ahead of people.

Click here for the statement.

September 24, 2007

More Profit and Less Nursing: New York Times exposes nursing homes owned by private investment groups

by Levin & Perconti

Profits come before protecting our nation’s most vulnerable citizens. Nursing homes housing our nation’s elderly that are owned by private investment groups often put profits over people in operating their facilities, the New York Times reported on Sunday.

The Times piece revealed that since the year 2000, 1200 nursing homes have been purchased by large investment groups. While investors of these private groups have been making millions from operating these nursing homes, resident care has declined. The model these groups have been following – reduce costs, increase profits and quickly sell. The consequences of implementing this model are decreased levels of staff and decreased budgets for supplies, activities and other resident services. Decreases in care and services provided to residents leads to nursing home abuse and neglect, a prevalant problem in our nation's long-term care facilities.

Click here for the full article

July 16, 2007

Loyola University Chicago Schools of Law and Social work co-sponsor the Institute on Aging and Mental Health Issues

by Levin & Perconti

The Elder Law Initiative and School of Social work present the Third Annual Summer Institute on Aging. The Summer Institute on Aging is a four-day, interdisciplinary course co-sponsored by the Loyola University Chicago School of Law and School of Social Work open to social workers, nurses, physicians, counselors, geriatric care managers, and attorneys. This highly interactive course will explore the psychosocial, ethical, policy, and legal issues related to aging and mental health, taking into account racial, gender, ethnic, and income differences among the elderly. The course will feature faculty and guest speakers from a variety of disciplines. Through simulations and group work, the course provides an excellent opportunity for true interdisciplinary collaboration. Continuing education credit available.

Click here for more information or contact Marcia Spira at 312.915.7580

June 24, 2007

Patient Safety and Abuse Prevention Act: Criminal background check for long term care workers -- Please help pass this legislation!

by Levin & Perconti

The Patient Safety and Abuse Prevention Act was introduced by Senators Pete Domenici and Herb Kohl, chairman of the Senate Special Committee on Aging, and it would require comprehensive criminal background checks on long term care workers who have direct access to residents. The checks would include requiring nursing homes to screen prospective employees – while providing supervised provisional employment for thirty days – by checking criminal records, abuse and neglect agencies in all states, records from agencies such as Medicaid fraud control units and professional licensing boards. Sates would be required to penalize facilities for noncompliance and fine facilities that knowingly employ a worker with a criminal background.
Please help pass this legislation! This bill (S. 1577) is intended to stop workers with criminal records from working with vulnerable people.

Click here to read the bill
Click here to read the National Citizen's Coalition for Nursing Home Reform's letter of support

June 21, 2007

States face decisions on who is mentally fit to vote

by Levin & Perconti

States all over the country are grappling with the issue of who is mentally fit to vote. Nursing home residents, especially those with Alzheimer’s, are coming into question, as well as people living with other disabilities. The mentally disabled and their advocates are fighting to secure voting rights while psychiatrists and those that work with the elderly are concerned about the risks of voting by people with conditions like Alzheimer’s and dementia. Many people with dementia vote or want to vote but it is important to ensure that they are not pressured to vote certain ways. A New Jersey nursing home employee won a county election but was forced to step down after it was revealed that she took advantage of mentally incapacitated residents. Similar accusations have been reported in Alabama, South Carolina and other states. This summer, lawyers led by the American Bar Association and a group of psychiatrists will publish recommendations for national standards suggesting that people should only be banned from voting if they cannot indicate a “specific desire to participate in the voting process.”

New Jersey’s constitution currently forbids an “idiot or insane person” from voting and an amendment may appear on the November ballot. Advocates want the words removed, but fear they will be replaced with vague and restrictive language. A current Missouri lawsuit seeks to overturn the current state voting ban for people under full guardianship because of mental illness. A current debate in Rhode Island concerns the voting rights of the criminally insane. Only two states allows jailed felons to vote but advocates argue that the criminally insane are evaluated based on dangerousness and not voting capacity, and that voting can be part of rehabilitation moving them “closer to society.” State laws are inconsistent, but the emerging model is based on the 2001 ruling in Maine which allows people to vote if they understand the voting process and can make the choice. Assessing such qualifications is still controversial.

Click here for the full article

June 21, 2007

Help pass the Home and Community Based Services Co-payment Equity Act

by Levin & Perconti

Nursing home residents receive an exemption from Part D co-payments, and this exemption should be extended to assisted living and board & care patients who receive Medicaid. Medications can eat away most of these residents’ incomes and residents of community-based facilities should have the same rights as nursing home residents. So ask your Senator to support the Home and Community Based Services Co-payment Equity Act (S. 1107).

Click here to read the bill