The Nursing Home Care Act regulates nursing home and other long-term care facilities. Specifically, it defines who is protected and their rights, the facilities and entities that are subject to regulations, and the penalties that the regulated entities incur if they violate safety standards. The nursing home industry is rapidly expanding to meet the demands of the aging American population. Unfortunately, that means some nursing homes are unable to provide adequate care for their residents which can result in injuries or even fatalities.
Introduction: Projected Population Increases
According to the Census Bureau, in 2012, there were about 43.1 million people over the age of 65. By 2050, the elderly population is projected to expand to 83.7 million. These projections will place tremendous strains on Social Security, Medicare, and Medicaid, as well as, in nursing homes, long-term care facilities, and hospitals.
These population projections will necessitate thousands of additional facilities to provide care and living facilities. Unfortunately, the rapid growth of these facilities also means that funding, training of personnel, and the oversight of facilities are going to be stretched to the limit. As new facilities rapidly increase, without sufficient time to investigate and prepare personnel, the total number, and rate of residents who suffer abuse will rise.
To counter these results, Illinois passed the Nursing Home Care Act, which regulates nursing homes and other elder care facilities, enumerates a list of rights for residents, and provides for punishment of offenders.
The Nursing Home Care Act (“The Act”): Overview
The essential elements of the Act answer these three questions:
- Who or what is regulated?
- How is abuse defined?
- Who is protected?
The Act regulates all nursing home and long-term care “facilities.” The facility is broadly defined under the Act to include private homes, institutions, residences (for the elderly who remain in their home and hire a service to send nursing aides), and any other place operated either for or non-profit for the “infirm and chronically ill.” The Act thus covers every conceivable nursing home care facility, including both paid and volunteer staff members.
Abuse is similarly broadly defined to include both physical and mental injury. The Act specifically lists sexual assault as abuse, whether inflicted by a staff member or another resident. Neglect is another form of abuse which means that the facility, either intentionally or negligently, fails to provide adequate medical care, psychiatric assistance, mental health treatment, assistance with daily living activities, or personal care.
Levels of Abuse
The Act defines varying degrees of abuse by their severity and frequency. The more severe the abuse, the higher the level, and the more frequent the nursing home is cited for abuse, the higher the level. Higher levels of violations mean that the nursing home is subject to increasing penalties, including fines, mandatory additional training, and even the suspension or loss of its operating license (nursing homes cannot operate unless they are licensed).
There are four types of violations:
- Type AA;
- Type A;
- Type B;
- Type C.
The violations are all measured by the likelihood that a resident is going to suffer abuse or the severity of the abuse suffered. For example, a Type AA violation occurs when the facility’s actions or inactions contributed to or resulted in the death of a resident. Conversely, a Type C violation means that the conditions at the facility create a substantial possibility that minimal physical or mental harm will result, for example, pairing two residents together who do not get along.
Nursing Home Duties
In addition to defining violations and abuse, the act imposes affirmative duties. An affirmative duty, as opposed to a negative duty, is an act that the nursing home must versus an act that it must refrain from doing. For instance, nursing homes must train their staff on how to identify abuse or neglect. Conversely, a negative duty means that the nursing home must also refrain from abusing or hurting their residents.
The Act imposes on nursing homes the following duties:
- Train staff to identify signs of abuse;
- Take steps to prevent abuse;
- Report abuse to the facility and the Department of Public Health.
Moreover, nursing homes must screen residents, for instance, residents who are violent, who have a history of sexual abuse or mental abuse.
Investigation, Hearing, and Punishment
Once the Department is alerted that an abusive event has occurred, it investigates the facility and the suspected staff member within seven days. The Department will also hold a hearing, in which the accused staff member or nursing home can defend itself.
If the Department determines that abuse or neglect occurred then the nursing home is subject to a variety of punishments including:
- Public notices identifying the abuse, in essence, giving the facility a “grade;”
- Revoke licenses from the facility and staff; and
- Injunctions prohibiting the facility from providing care.