Illinois nursing homes reviewed; Survey said…

Most general practitioners, and especially those that do estate planning work, will have come across clients who have complained about the care that a friend or family member has received in a nursing home or care facility. We even see ads on TV for lawyers who will consider taking up claims against nursing homes for abuse of patients and residents. Dealing with clients’ complaints regarding nursing homes or skilled nursing facilities can be difficult, as many local, state, and federal agencies could have jurisdiction over the facility and can become involved in pursuing and investigating a complaint. Clients will not be satisfied with the delays that many agencies produce in eventually coming to a resolution of a question or complaint. Reading the Seventh Circuit U.S. Court of Appeals opinion in Rosewood Care Center of Swansea v. Price, 16-3368, decided on August 22, 2017, will give you some information that you can discuss with your clients who come to you with this type of complaint.

Skilled nursing homes that are in the Medicare/Medicaid programs are under federal jurisdiction and many federal statutes and regulations apply. The U.S. Secretary of Health and Human Services enforces those regulations and statutory provisions through an agency called CMS, the Centers for Medicare and Medicaid. That agency does surveys of nursing homes to see if they are in compliance with regulations. If CMS determines that a facility is not in substantial compliance, it can find a violation and impose various remedies, including monetary penalties. In the case of Rosewood, the facility was fined $6,050 a day for its failing to comply with certain regulations! Some penalties are minor, but some can be major if the non-compliance by the nursing home has caused or is likely to cause serious injury, harm, impairment, or death to a resident. Here, Rosewood Care Center of Swansea (near Bellville, IL) violated several rules and regulations and was heavily fined. The Illinois Department of Public Health was the agency that did the survey of Rosewood. The survey included results of inspections and interviews. After reviewing the survey results, etc., CMS determined that the action or inaction on the part of Rosewood, placed residents in immediate jeopardy of injury. An administrative law judge affirmed the CMS determination and the department’s appeals board also affirmed. Rosewood then petitioned for review to the U.S. Court of Appeals. The Seventh Circuit concluded that substantial evidence supported the agency’s findings and, therefore, confirmed the agency’s findings and denied the facility’s petition.

This case presents an in-depth review of certain allegations against Rosewood and cites various regulations that Rosewood followed or did not follow.

Here are some of the salient points referenced in the Seventh Circuit’s opinion:

1. A facility is to develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.

2. All allegations of mistreatment, neglect, or abuse at the nursing facility must be reported immediately to the administrator of the facility and to other officials as required by state law.

3. The nursing facility is to undertake immediate steps to prevent further abuse while the investigation is in progress.

4. A facility’s own policies will be strictly construed, including a provision in a policy that requires an administrator to report immediately to appropriate state authorities, any and all allegations of abuse and misappropriation of property.

5. Facilities must have evidence that all alleged violations are thoroughly investigated and must prevent further potential abuse while the investigation is in progress.

If you are going to write a letter to a facility on behalf of a client, or even if a client wishes to take up his own complaint against the nursing home, here are some of the points to be sure to address:

Ask the facility for a complete copy of its internal policies regarding the investigation of abuse, neglect, and theft.

Ask the facility for the results of the last survey conducted of the facility by the Illinois Department of Public Health or other state agency.

Ask the facility to report what it did in response to a client’s or a client’s family member’s complaint or allegation. Feel free to mention the Rosewood case and that you are aware that hefty penalties can be imposed against a facility for its failure to follow state and/or federal regulations, including failing to follow its own internal policies.

Finally, be sure to recommend to clients that they consider pursuing matters directly with the Illinois Department of Public Health, CMS, and other governmental bodies that have jurisdiction over the facility in question, i.e. city and county health departments.

Unlike the popular game show “Family Feud” where survey answers can produce great winnings for a participant, the survey answers obtained in the skilled care facility world will not produce any winnings; however, they may produce extremely high monetary penalties. As a further note, you can advise clients to visit the websites of CMS and IDPH to have them review comments and rankings of nursing home facilities which they are considering, if one of their family members is in need of such services. 