Federal and Illinois state nursing home laws aim to protect the safety, well-being and health of nursing home residents. Nursing home residents have specific rights that are articulated in federal and Illinois state laws. When long-term care facilities fail to uphold these rights, criminal and civil liability may result. Any individual who has a loved one in a long-term care facility should seek to become familiar with Illinois laws concerning nursing home residents. By understanding these laws ahead of time, a family member may be in a position to spot violations or signs of nursing home abuse and neglect. In addition, a family member may know how to proceed in taking legal action against a long-term care facility.
Illinois protects the rights of nursing home residents through several government agencies and laws. The government agencies responsible for receiving complaints, investigating complaints and maintaining the safety and welfare of nursing home residents are:
- Illinois Department of Healthcare and Family Services
- Illinois Department of Aging
- Illinois Department of Public Health
- The Freedom of Information Officer in Illinois
- Illinois Long-Term Care Sub-State Ombudsman
- Illinois’ Peer Review Organization
- Illinois Foundation for Quality Health Care
- Illinois Legal Advocate
- Illinois Legal Aid
Several laws are also relevant when considering the constitutional and legal rights of nursing home residents. The relevant laws are:
- The Nursing Home Reform Act of 1987 (Federal)
- Illinois Nursing Home Care Act
- The Illinois Survival Act
- Illinois Administrative Code: PUBLIC Health, Subchapter c. Long-Term Care Facilities
- The Freedom of Information Act
Procedure for Dealing with Nursing Home Abuse and Violations
Illinois nursing homes are regulated by Illinois and federal government agencies. If a nursing home has abused, exploited or neglected a resident, family members may file a complaint with several of these organizations. Once a formal complaint has been filed, a nursing home may be inspected by a state or federal agency. In addition, all long-term care facilities are required to undergo a state investigation at least once every 12 months.
The Illinois Department of Public Health is responsible for determining whether a long-term care facility has deficiencies. A deficiency is referred to as an instance in which the facility has failed to meet required licensure, certification or legal standards. If the IDPH cites deficiencies for a long-term care facility, then the facility has a period of 10 days to submit a written plan of correction. The plan must detail how the deficiencies will be remedied.
Appealing an IDPH Decision
If the IDPH states that a facility is not in violation of the NHCA, family members have the right to appeal the decision. A family member or nursing home resident must file an appeal within 30 days of receiving notice of the decision. Within 30 days of filing, the IDPH will hold a hearing. The filing party is required to make an appearance and provide testimony at the hearing. Other witnesses may be subpoenaed and compelled to provide testimony at the hearing.
The Illinois Nursing Home Care Act: 240 ILCS 45
Instead of filing a formal complaint with the IDPH, family members may be interested in filing a lawsuit against a long-term care facility. If a court finds that a nursing home has violated patient rights set forth in the NHCA, a loved one may be eligible to receive compensation.
The NHCA clearly addresses the legal rights of patients residing in long-term care facilities. Under this Act, patients have rights that include:
- The right to be free from abuse and neglect
- The right to manage one’s own finances
- The right to keep his or her personal property and clothing, as well as be granted adequate storage space
- The right to choose their own care from a personal physician at his or her own expense, under an insurance policy or under a relevant public assistance program
- The right to refuse medical treatment and be aware of the consequences of refusing medical treatment
- The right to inspect and copy all of his or her medical records
- The right of a resident’s parent or guardian to inspect clinical records
- The right to be free from physical or mechanical restraints
- Should a physical restraint be necessary under a clinical record, the right to provide informed consent to wear a restraint
- The right to enjoy private and unimpeded communication
- The right to free exercise of religion
- The right to present grievances
Nursing home residents are empowered to file a private cause of action when a long-term care facility is found to violate these rights. The NHCA provides patients with a private cause of action, and patients are encouraged to act as their own “private attorney generals” to investigate the quality of care that they receive.
The Federal Arbitration Act
Despite the existence of the NHCA, family members of patients should be aware that they may need to pursue arbitration prior to filing a legal claim in court. The Illinois Supreme Court has recently ruled that the Federal Arbitration Act takes precedence over state law.
The Illinois Survival Act (ISA)
Even though the NHCA does not state that a resident’s claim survives past his or her death, family members may still assert NHCA violations in a survival action. The Illinois Survival Act allows a decedent to assert a common law or statutory claim that has accrued prior to a resident’s death.
Wrongful Death Claims
While the NHCA carves out specific and enumerated legal rights for residents, traditional negligence actions do not entail these same rights. A surviving family member or heir may have an interest in pursuing legal action for a nursing home’s negligent conduct. However, the wrongful death claim may not be asserted under the umbrella of the ISA. Instead, family members will need to assert the wrongful death action under the umbrella of “healing art malpractice.” In Illinois, medical malpractice claims must be reviewed by an objective health professional who is knowledgeable about the subject area of the claim, has practiced or lectured within the area in the last 6 years and has demonstrated experience in handling the case’s subject matter. The health professional’s report on the claim must be attached to the complaint within 90 days of the complaint’s filing.
Damages Under NHCA vs. Healing Arts Claims
Under the NHCA, patients may have a broader right to damages than in healing arts claims. NHCA claims allow a patient to recover for all damages directly and proximately caused by a nursing home. In addition, a patient may recover unlimited attorney fees, court costs and punitive damages. The Illinois Supreme Court is currently grappling with the issue of whether punitive damages may be consistently recovered in NHCA claims. The traditional healing arts claim only allows a plaintiff to recover damages for medical expenses, lost wages and pain and suffering.
Learn More About Illinois Nursing Home Laws
If you wish to learn more about Illinois nursing home laws, you may want to spend time reviewing the various websites of Illinois government agencies responsible for regulating long-term care facilities. An Illinois nursing home abuse lawyer can also assist you in understanding recent developments in nursing home case law and decisions handed down from the Illinois Supreme Court. He or she may also assess the facts of your case to determine whether there have been NHCA violations.