Articles Posted in Nursing Home Care Act (NHCA)

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Effective July 29, 2010, the Illinois General Assembly amended the Nursing Home Care Act to include what it termed “whistleblower protection”. 210 ILCS 45/3-810 (West 2010). Section 3-810 specifically provides a private right of action for nursing home employees who are retaliated against for reporting or threatening to report to a supervisor or a public body any action or incidents they believe to be a violation of the law, a rule, or a regulation regarding care and treatment of nursing home residents. Prior to this amendment, Illinois Courts did not recognize a private right of action for nursing home employees who reported violations and were retaliated against. In Young v. Alden Gardens of Waterford, Bethany Young, RN filed suit alleging, in part, that she was retaliated against for refusing to falsify medical records on November 9, 2009. The trial court dismissed her claim under Section 3-810 based on the fact that the Nursing Home Care Act did not provide a private right of action for retaliatory discharge at the time the conduct occurred. The court noted that because the amendment affected a substantive change in the law, it could not be applied retroactively to Young’s claim. Young v. Alden Gardens of Waterford, LLC, 2015 IL App (1st) 131887 ¶ 11.
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A new elder neglect lawsuit was filed recently in Cook County alleging mistreatment by home health caregivers. The complaint, filed last week, can be viewed online in full.

Several different Chicago home health companies and facilities are named in the complaint, which seeks to hold the entities accountable for the actions of their employees in the scope of their employment.

The plaintiff in the case is a man filing suit on behalf of his now-deceased father. The father was receiving care at his home. However, in mid-November of 2011, the senior was brought to a local hospital for a range of problems, including several bed sores, an infection, diabetes problems, and sepsis. His lower leg was amputated to stave off the infection, but the senior died a few days later as a result of complications.

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The federal Nursing Home Reform Act covers many of the rights that nursing home residents are guaranteed. These rights are codified in the Code of Federal Regulations Title 42- Public Health Law, Part 483.

These rights include:

The right to choose a doctor The right to receive advance information about treatment The right to be free from all kinds of nursing home abuse The right to obtain clinical records upon request The right to have notice before a room or roommate change happens The right of residents to manage their personal finances.

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It is a sad tale that plays out in our community every day. Local resident Nancy Rivera’s mother began suffering cognitive challenges. Like so many others, the senior, Carmen Marrero, suffered from Alzheimer’s, and her condition slowly deteriorated. About three months ago her health was in such a place that she needed around-the-clock care. It was more than Rivera could provide on her own.

To ensure her mother’s safety, the adult daughter moved her parent in a facility she assumed would provide the close care needed–the Grove at the Lake Living & Rehabilitation Center in Zion.

Sadly, in just that very short time, evidence suggests that Ms. Marerro did not receive anywhere near the care she needed. As discussed in a recent Sun Times report, since moving into the facility, Marrero needed to be taken to a local hospital for medical care at least twice.

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A nationwide nursing home resident advocacy group, “Families for Better Care,” recently released a comprehensive “Nursing Home Report Card.” The study culls 2013 data in at least eight different criteria to grade each individual state on the quality of nursing home care provided. The grade is an easy-to-understand gauge of the current state of long-term care in each region.

So how did Illinois stack up in this effort? Not good. Nursing home caregivers in Illinois received the lowest grade possible, an F. Overall, the state was in the bottom ten nationwide. Those of us who work on IL nursing home neglect cases fully appreciate the scope of mistreatment faced by so many seniors. But it is still discouraging to see even more confirmation of the inadequate services provided to some of our most vulnerable community members.

Poor Illinois Nursing Home Care

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There is such variety in the quality of nursing homes that it is absolutely essential to take care when making a selection for a loved one. Weighing the facility’s track record, location to family members, available amenities, perspective of current residents, and other factors is critical. It is not a stretch to say that the life of your relative is on the line, and it is well worth it to take all the available time to make the appropriate choice.

But as far too many Illinois families know, there often is not much available time. Many seniors suffer a fall, stroke, heart attack, or other accident that forces them to move into a facility where they can receive around the clock assistance right away. Adult children, other relatives, and friends often have to help make a nursing home decision almost immediately.

Prepare Ahead of Time

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Nursing home neglect and abuse lawsuits are guided by state and federal statutes, administrative/regulatory rules, and common law principles. Attorneys working on these cases may draw on any of these in order to ensure proper accountability for nursing home owners, operators, caregivers, and others whose mistakes (or intentional actions) may cause harm to seniors.

Considering the various sources of law, sometimes these legal cases can be quite complex. At times, the basis for accountability is not straightforward. For example, most understand that an individual caregiver can be held responsible when they intentionally harm a senior. However, rules about oversight of those employees may also mean that the operators of a nursing home (or owner/shareholders) may similarly be accountable for the actions of their employees.

In addition, facilities can also be held accountable in various ways not only for the damaging mistakes they make, but also for their response (or failed response) to claims of neglect or abuse. In other words, the poor response itself is a separate form of negligence, on top of the underlying mistreatment.

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Honesty is always the best policy. That is true is so many facets of life, from politics and family relationships, even to things like nursing home care. Nursing home residents and their families do not expect perfection when it comes to long-term care giving. But they do expect a commitment to providing the best care possible and openness if any sort of adverse event occurs. Time and again, however, nursing home owners and operators not only fail to ensure elder neglect is prevented, but they try to cover up their errors or sweep problems away.

This should never be tolerated.

State regulators in Illinois and throughout the country appreciate that ensuring proper response to adverse events–falls, development of pressure sores, outright abuse–is just as important as preventing the problem itself. In other words, not only should things like pressure sores be prevented, but facilities must be required to act in a timely fashion to report the sores and otherwise make relevant parties aware of the problem.

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The majority of nursing home residents rely on Medicaid support to pay for the long-term specialized care that they need. As a result, the Medicaid program has enormous control over the care at most nursing facilities–they can make requirements and pull funding when those requirements are not met.

The “Nursing Home Compare” website that we frequently reference is based almost entirely on how well those homes do on various inspections and quality of care indicators. These inspections and checks are performed annually, and so they provide a helpful way to gauge how different facilities are improving (or not improving) in their efforts to raise standards, eliminate elder neglect, and ultimately improve the well-being of residents.

This is helpful for seniors and their families when making decisions about which home to choose. It is also useful for regulators, as they make decisions about whether the very worst homes which provide poor care should remain open.

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Choosing the right nursing home for a loved one is a difficult task. The potential for mistreatment and abuse of a vulnerable relative is often on family member’s minds. According to McKnight’s Longterm Care News & Assisted Living, the Center for Medicare and Medicaid Services (CMS) is striving to make this process easier. The government agency responsible for administering Medicare and other programs, as well as providing information to health professionals and the public, is currently in the process of expanding its database to provide more detailed information about nursing home deficiencies.

CMS began posting nursing home deficiency reports last summer, based on information reported to the agency through standard health and complaint surveys. CMS conducts these investigations as part of its role in overseeing that nursing homes comply with health and safety laws. The data currently provides information as far as fifteen months back and one survey cycle, but CMS aims to provide information as far back as three cycles for standard health surveys, and three years for complaint surveys. In addition to the increased time period, CMS also intends to provide indicators as to the severity of each deficiency cited. All in all, the added information will likely give families a greater sense of control and security in the nursing home selection process, and will help to hold deficient nursing homes accountable.

CMS’s pledge to provide greater information to the public couldn’t come earlier. Recently, in Connecticut, a string of nursing homes have been found to have left vulnerable elders in desperate conditions. The CT Post reports that the Connecticut Department of Public Health (DPH), a state agency, found numerous violations of the state’s regulations for nursing homes. In one case, a resident with a leg wound had refused treatment for so long that maggots were found to be festering inside of it. The DPH found that the nursing home responsible had performed a psychiatric evaluation on the resident, but had failed to approve her for psychiatric admission, and had failed to provide an alternative treatment plan. In another case, a resident suffered extreme weight loss due to loss of dentures, a condition to which the responsible facility’s nutritionist was never alerted. In the final case, a resident was moved from a wheelchair to a bed without a mechanical lift, contrary to the patient care plan. The resident was injured from being dropped during the transfer. The DPH administered fines for each deficiency cited.