IDPH Regulatory Actions Under the Nursing Home Care Act
By Sean D. Hurley
Incidents involving personal injury to nursing home residents must be reported to the Illinois Department of Public Health (“IDPH”) within 24 hours. 77 Ill. Admin. Code 300.690. Such reports often prompt the IDPH to initiate an investigation into the incident reported.
In addition to investigations and possible sanctions by the IDPH, as well as other state and federal regulatory bodies, Illinois nursing homes can also be subject to private causes of action brought by a resident or a resident’s family arising from alleged abuse and neglect of a resident. Often, such claims are asserted under the Illinois Nursing Home Care Act (“NHCA”), which creates a private cause of action for violations of certain rights held by nursing home residents and enumerated in the NHCA. See 210 ILCS 45/3-601, 3-602, 3-603.
IDPH Investigations and Responding to Citations
Any individual who believes that a nursing home resident has been subject to abuse or neglect may submit a complaint to the IDPH. 210 ILCS 45/3-702. Once the IDPH has initiated its investigation of a complaint of abuse and neglect, the facility may be subject to inspections by representatives of the IDPH. 77 Ill. Admin. Code 300.200. During such inspections, the IDPH will often conduct interviews of several individuals, including the resident who is the subject of the complaint, other residents, and employees of the facility. The inspectors will also examine the facility, itself as well as any records maintained by the facility that may be relevant to the investigation. 77 Ill. Admin. Code 300.200.
The potential consequences stemming from an IDPH investigation of abuse and neglect can be severe. No later than 60 days after an inspection has been conducted, the IDPH must determine whether any violations have been noted and, if so, which violations have occurred. 77 Ill. Admin. Code 300.272. The IDPH will consider a number of factors, such as the severity of the finding, as well as the danger posed to resident health and safety, in determining whether to issue a notice of violation to the facility, or merely an administrative warning. If the IDPH determines that a notice of violation is warranted, the IDPH must issue the notice to the facility within ten (10) days of that determination. 77 Ill. Admin. Code 300.276. The notice will advise the facility of the violation, a statement of the level of the violation, the requirements for corrective action the facility must take, the facility’s right to appeal the notice, and its right to a hearing. For level A violations, the facility must take corrective action to abate or eliminate the violation within a time period not to exceed fifteen (15) days. For level B violations, the notice of violation will request that the facility submit a proposed plan of correction within ten (10) days. How the facility acts to remedy the violation, including the sufficiency of the plan of correction, is critical as to any further action taken by the IDPH and how future complaints impact a facility’s licensing by the IDPH.
Beyond requiring corrective action, the IDPH may also take more punitive measures against the facility, including the imposition of fines, as well as suspension or even revocation of a facility’s license. 77 Ill. Admin. Code 300.282, 300.165. When a fine is imposed, the IDPH may offer that facility an opportunity to pay a reduced monetary penalty in lieu of further administrative review. As part of that arrangement, however, the facility should know that it may still be included among a list of violators maintained by the IDPH. It is important that facilities develop a comprehensive compliance response team and consider consulting with their legal counsel in order to ensure that they are properly responding to an IDPH investigation.
If the IDPH imposes a fine upon a facility, the facility may contest the assessment of the penalty by submitting a written request for a hearing to the IDPH. 77 Ill. Admin. Code 300.286. The IDPH is required to hold a hearing within 30 days of its receipt of the facility’s request. 210 ILCS 45/3-704. Facility personnel are allowed by statute to be represented by legal counsel at that hearing. 210 ILCS 45/3-706. While these hearings are not subject to the rules of evidence that apply to court proceedings, facility personnel should consult with their legal counsel to prepare for such hearings. Additionally, counsel should be present at the hearing to represent the facility’s interests.
Similar to the facility’s right to contest the assessment of a penalty, the complainant also has the right to request a hearing to contest the IDPH’s determination that no violation has occurred. 210 ILCS 45/3-702. The hearing officer may affirm the IDPH’s determination; however, it is possible that the hearing officer will disagree with the IDPH’s finding of no violation, or, at the very least, conclude that an additional inspection is warranted. Therefore, a facility should be aware that an initial finding of no violation in response to a complaint of abuse and neglect may not be the end of the matter.
Private Causes of Action under the NHCA
In addition to regulatory measures by the IDPH and other regulatory bodies, Illinois nursing homes may also be subject to private causes of action for allegations of abuse and neglect, particularly claims brought under the NHCA. The private cause of action created by the NHCA mimics, in certain ways, a medical malpractice cause of action asserted against anyone who provides healthcare to an individual. However, the NHCA includes provisions that make a nursing home case different from a medical malpractice case that might be filed in the state of Illinois. First, the NHCA allows those who prevail against a nursing home in a lawsuit to potentially collect their legal fees and expenses, including attorneys’ fees, from the defendant nursing homes. 210 ILCS 45/3-602. This provision in the NHCA is a radical deviation from other personal injury litigation, including other medical malpractices cases. In those cases, if a plaintiff prevails in litigation, the jury is able to award the plaintiff money to compensate the plaintiff for the injuries he sustains and, typically, the plaintiff’s attorney’s fee is paid from a portion of the damages the plaintiff receives. The defendant, even if he loses, is not responsible for paying the plaintiff’s lawyer’s fee. In cases that include a cause of action pursuant to the NHCA, however, the jury awards damages to the plaintiff for his injuries, which the defendant nursing facility may have to pay, and the plaintiff’s attorney submits his or her bill for fees, which may also have to be paid by the defendant nursing home. See Berlak v. Villa Scalabrini Home for the Aged, Inc., 284 Ill. App.3d 231, 235 (1st Dist. 1996).
As discussed above, a plaintiff who successfully prosecutes a NHCA claim against a facility may recover their actual damages, such as medical expenses, in addition to their attorneys’ fees. However, in certain cases, a NHCA plaintiff may recover an additional measure of damages: punitive damages. Illinois courts have held that plaintiffs who sue for violation of the NHCA may “recover common law punitive damages upon proof of willful and wanton misconduct on the part of defendant.” Dardeen v. Heartland Manor, Inc., 186 Ill.2d 291, 300 (1999). Punitive damages may be awarded in certain circumstances where the defendant’s conduct is found to be especially willfull and egregious. Punitive damages are designed to punish the defendant for its misconduct, and to deter that misconduct in the future.
Some NHCA cases may also involve a prior or pending IDPH investigation arising from the same core allegations as the NHCA claim. This is why it is important to involve legal counsel from the early stages of an IDPH investigation regarding allegations of resident abuse or neglect.
Should you have any questions regarding these issues, or require assistance with an IDPH action, please contact Michael A. Airdo at [email protected] or 312-506-4480, Mollie E. Werwas at [email protected] or 312-506-4474, or Sean D. Hurley at [email protected] or 312-506-4455.