South Carolina Nursing Home Blog : South Carolina Nursing Home Lawyer & Attorney : Poliakoff & Associates Law Firm : Elderly Care, Senior Care

Chicago Sun-Times had a great article about how administrators in Illnois (like most states) do not get disciplined when  the administrators allow or permit abuse, neglect, or poor care at nursing homes.  Illinois nursing home administrators are rarely disciplined even though the state Health Department, which investigates nursing home care, refers dozens of cases a year to the agency in charge of meting out punishment.

From 2005 through 2009, the Illinois Department of Financial and Professional Regulation received 407 complaints from the state's health department. Only three resulted in discipline for nursing home administrators.  THREE OUT OF 407 COMPLAINTS. 

Advocates for nursing home residents say that's a sign of a broken system.  "Less than 1 percent is ridiculous," said Toby Edelman, an attorney with the nonprofit Center for Medicare Advocacy. "There should be more accountability on the part of the administrators."

The numbers were put together by a task force Gov. Pat Quinn formed after a series of assaults, rapes and murders in Illinois nursing homes. The task force is looking into why so few cases result discipline, said Michael Gelder, Quinn's senior health adviser. "We're absolutely very concerned about that," he said.

Advocates for nursing home residents are now watching to see whether Jamie L. Lloyd, administrator of Maplewood Care in Elgin, will be disciplined after a 21-year-old mentally ill resident sexually assaulted a 69-year-old woman at the home. Lloyd did not do a proper background check.  Had Lloyd checked, he would have discovered the former resident had an outstanding arrest warrant on felony battery charges.

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In a landmark opinion that recognizes a new cause of action for nursing home residents, the 3rd U.S. Circuit Court of Appeals has ruled that the Federal Nursing Home Reform Amendments give residents of county-run nursing homes the right to bring claims to challenge the quality of their treatment.   This is a huge victory for consumers of nursing homes.  Hopefully, other Courts will follow the sound reasoning and adopt the holding.

"The language used throughout the FNHRA is explicitly and unambiguously rights-creating," U.S. Circuit Judge Richard L. Nygaard wrote in his 23-page opinion in Grammar v. John J. Kane Regional Centers.   "These provisions make clear that nursing homes must provide a basic level of service and care for residents and Medicaid patients," Nygaard wrote.

"The FNHRA are replete with rights-creating language. The amendments confer upon residents of such facilities the right to choose their personal attending physicians, to be fully informed about and to participate in care and treatment, to be free from physical or mental abuse, to voice grievances and to enjoy privacy and confidentiality," Nygaard wrote.

Under the law, Nygaard said, nursing homes "are required to care for residents in a manner promoting quality of life, provide services and activities to maintain the highest practicable physical, mental and psychosocial well-being of residents, and conduct comprehensive assessments of their functional abilities."

Nygaard also found that the statute "specifically guarantees nursing home residents the right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for the purposes of discipline or convenience and not required to treat their medical symptoms."

Congress also chose key phrases that Nygaard found to be clear indications that private lawsuits should be allowed. "The repeated use of the phrases 'must provide,' 'must maintain' and 'must conduct' are not unduly vague or amorphous such that the judiciary cannot enforce the statutory provisions," Nygaard wrote.

As further evidence that Congress intended to create a private right of action, Nygaard noted that the FNHRA "use the word 'residents' throughout," and their provisions "are constructed in such a way as to stress that these 'residents' have explicitly identified rights, such as 'the right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for the purposes of discipline or convenience and not required to treat the resident's medical symptoms.'"

In the case of the FNHRA, Nygaard said: "[O]ur independent examination and assessment of the Medicaid Act disclosed no evidence of congressional intent to preclude enforcement of the rights created by the various provisions of this statute. This is so because no provision contains express terms to that effect and no comprehensive remedial scheme is established by the provisions at issue."

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