The Rights of Residents of Nursing Homes

PART II: RESPONSIBILITIES OF THE HOME

By : John P. Scanlon & Dennis M. Lynch

There was a lot of interest in last month's article, addressing the rights of nursing homes residents under the Nursing Home Care Act, 210 ILCS 45/2-101, et. seq. This month's article will discuss the responsibilities of nursing home administrators and employees.

Protecting a Residents' Funds

One of the responsibilities a nursing home owes to its residents is to protect his or her funds. To this end, a facility should provide each resident, or their guardian, a written statement explaining what services a resident will be charged for and should allow access to written records of any financial arrangement or transaction involving the resident. Specifically, at least every quarter the facility should provide the resident or his or her guardian a written itemized statement of all financial transactions involving the resident. (210 ILCS 45/2-201(4)).

Some residents choose to entrust their personal funds to the facility.If this is the case, the facility should obtain a surety bond insuring the funds against any loss, theft or insolvency. (210 ILCS 45/2-201(5)). The facility should keep the funds in an account separate from the facility's own funds, and may not withdrawn any funds for any reason not related to the resident. (210 ILCS 45/2-201(6)). If the amount of the funds exceeds $100, they should be placed in an interest bearing account, with the interest accruing to the resident. (210 ILCS 45/2-201(7)).

Residents' Advisory Council

A facility should also establish a residents' advisory council.(210 ILCS 45/2-203). The residents' advisory council can only include residents, and may not include any employees. However, an employee may serve as a staff coordinator. The council should meet at least once a month and records of the meeting should be maintained by the administrator of the facility. The purpose of the council is to 1) obtain and disseminate information, 2) solicit and adopt recommendations for facility programming and improvements; and 3) identify problems so that they can be resolved early.

The residents' advisory council will coordinate with the long-term care facility advisory board, which is appointed by the Director of Public Health. (210 ILCS 45/2-204). That board consists of the Director of Public Health, representatives from the Department of Public Aid, the Department of Human Services, the Department on Aging, the State Fire Marshal, a licensed physician, a registered nurse, a member of a residents' advisory council, and various members representing the general public and organizations whose memberships consist of nursing homes.

Civil Liability

If any of the residents' rights are violated or if the nursing home fails to meet its responsibilities, the nursing home may be civilly liable. If a resident is injured as a result of a intentional or negligent act or omission of a Nursing Homes' employee, the home may be liable. (210 ILCS 45/3-601). At one time, a Nursing Home was liable for "trebled damages" or three times any actual damages sustained by the resident. In 1995 the Nursing Home Care Act was amended to remove this provision. However, the Nursing Home Care Act still allows a successful litigant to recover attorneys' fees and costs separate and apart from any damage award. (210 ILCS 45/3-602).

Allowing a successful resident to obtain attorneys' fees as part of a judgment is a significant and unique provision of the Act. Generally, each party bears the expense of their own attorney. In injury cases, an attorney typically agrees to work on a contingency fee basis; that is, he receives an agreed upon percentage of any recovery as his fee.This can dissuade some attorneys from taking smaller cases. By allowing for an award of attorneys' fees, the Act provides an incentive for an attorney to take a case against a nursing home even when damages are more difficult to quantify.

Illinois courts have expanded this incentive by holding that the amount of attorneys' fees awarded does not have to have a relationship to the amount of damages recovered by the resident. The purpose of the fee provision is to encourage attorneys to represent nursing home residents. In this way, the state can promote responsible nursing home management without necessarily having to fund its own investigation into nursing home misconduct.

Waiver of the Right to Sue and of the Right to a Jury Trial

The Act also provides that any purported waiver of a right to sue by a resident prior to the filing of a lawsuit is null and void and will not have any legal effect.(210 ILCS 45/3-606). Similarly, any waiver of the right to a jury trial will be void. (210 ILCS 45/3-607). The provisions are in place to compensate for the vulnerability of nursing home residents. A nursing home could easily write a provision into its contract which waives the right to sue or the right to a jury trial and attempt to obtain the residents' consent with a promise to provide services. After a nursing home knows its employees committed negligence or abuse, it could also attempt to obtain a residents' consent to waive the right to sue or the right to a jury trial, even offering a nominal amount of money as consideration for the waiver. To prevent such abuse of authority, the Act provides that any such waiver is void until a lawsuit is filed.

Retaliation

Finally, the Act protects residents from any sort of retaliations, including transfers, discharge, or harassment because a resident files a complaint, brings a lawsuit or testifies in support of another resident's lawsuit. Also, a nursing home employee is protected if he or she reports abuse or provides testimony in a lawsuit. (210 ILCS 45/3-608).

Conclusion

While, from our experience, the vast majority of nursing homes are well run, some nursing homes, like most businesses, could use some improvement. In that context, the Nursing Home Care Act attempts to balance the interests of the nursing home administration with the rights of the nursing home residents.