Category Archives: Legislation

Legislative Update: Illinois House Bill 4054 – Coroner Training Board Act

Senate Floor Pano

House Bill HB4054Coroner Training Board ActStatus: July 15, 2015 Re-referred to rules committee.

Synopsis as introduced
Creates the Coroner Training Board Act. Creates the Coroner Training Board which will have the power to establish application, training, and certification standards for coroners, and to review and approve annual training curriculum for coroners. Provides that the new Board will select and certify coroner training schools, shall conduct or approve a training program in death investigation for the training of coroners, and be allowed to accept contributions and gifts from any organization having a legitimate interest in coroner training. Amends the Illinois Police Training Act and the Counties Code removing the Illinois Law Enforcement Training Standards Board from overseeing coroner training and replacing with the Coroner Training Board. Amends the Vital Records Act providing that 25% of the Death Certificate Surcharge Fund may be used by the Coroner Training Board (currently the Illinois Law Enforcement Training Standards Board) for the purpose of training coroners, deputy coroners, and forensic pathologists, and police officers for death (currently homicide) investigations and lodging and travel expenses relating to training.

House Committee Amendment No. 1
Provides that forensic pathologists (currently, pathologists) shall be appointed to the Coroner Training Board. Provides that the Board shall consult with the Illinois Coroners and Medical Examiners Association when adopting mandatory minimum standards for coroners. Expands the location of coroner training schools. Provides that the Board can develop a waiver process for lead investigator of coroner investigations for coroners with prior experience. Further provides that a Section of the Illinois Police Training Act does not impede the powers of a coroner to investigate deaths.

Autopsy Center takes a general interest in the broad experiences of all families around the time of bereavement. We support legislative advances that improve and strengthen interactions with professionals during this difficult time — both through public education and improved professional standards. House Bill 4054 seeks to improve coroner qualifications and therefore represents an overall advance that will benefit families. The pluses of the bill include the value it places on coroner training and certification, forensics licensure, and independence from police oversight.

However, the bill leaves room for more balance in the handling of the statewide transition to certification – a complex undertaking. It specifically includes a waiver process whereby the Coroner Training Board may allow coroners to use experience to bypass new training guidelines. Depending on the leniency of the waiver process, the amendment may ensure that only new coroners (without experience and therefore the possibility of waiver) meet standards while making more limited impact on the quality of coroner work currently in place.

In some of the relevant comparative licensed fields (medicine, law, law enforcement), use of experience is not a substitute licensure or certification.

On the other hand, waiver by experience is modeled in the area of re-certification. We therefore encourage lawmakers to incorporate the concept of re-certification into this bill, and further, recommend restricting experience waivers to re-certification. This will have the effect of broad, immediate attention to standards across the field; reflect the value of continuing education; respect the evolving field of forensics; incorporate respect for experience; and balance out HB4054’s implicit power structure.

Specific language amendments may be as follows:
Section 30a:
Add after page 2, line 13: “The Board will require mandatory re-certification every 4 years or every election cycle” (or similar language and with appropriate interval to reflect the pace of developments in the field.)

Section 30b:
Add at the end of page 2 line 14: “for re-certification” (or similar language)
Add within page 2, line 18 after “a waiver”: “for re-certification” (or similar language)

Summary opinion:
While HB4054 is a positive and comprehensive step forward, our summary opinion is that this bill is not ready for passage.

Public Act 98-0988: Nursing Home – Anonymous Complaints


Senate Floor Pano

Public Act 98-0988 Nursing Home – Anonymous Complaints
Name of Filing Sponsor: Dennis M. Reboletti (R) 45th District
Date Sponsored: 2/14/2014
Date Enacted into Law: 8/18/2014

Synopsis As Introduced
Amends the Nursing Home Care Act. Provides that a complaint regarding an alleged violation of the Nursing Home Care Act may be transmitted to the Department of Public Health by electronic means. Provides that when a person requests that the Department investigate an alleged violation of the Act, the Department shall require (instead of shall request) the complainant’s identifying information. Allows the complainant to request that his or her identifying information remain confidential or that the complaint be treated as anonymous, and requires the Department to maintain the complainant’s confidentiality or anonymity unless: (1) the complainant consents to the disclosure in writing, (2) the Department’s investigation results in a judicial proceeding, (3) disclosure of the complainant’s identity is essential to the investigation, or (4) disclosure of the complainant’s identity is essential for the purposes of investigating or prosecuting the complainant’s alleged knowing transmission of a false report to the Department. Effective immediately.
House Committee Amendment No. 1
Adds reference to:
210 ILCS 47/3-702

Replaces everything after the enacting clause. Amends the Nursing Home Care Act and the ID/DD Community Care Act. Provides that a complaint regarding an alleged violation of the Nursing Home Care Act may be submitted by electronic means. Requires the Department of Public Health to make information available, through its website and upon request, regarding the oral and phone intake processes and the list of questions that will be asked of the complainant. Requires the Department to notify complainants that complaints with less information provided are far more difficult to respond to and investigate. Requires the Department to conduct an annual review and make a report concerning the complaint process. Requires the Department to provide its report to the Long-Term Care Advisory Board and the Illinois Long-Term Care Council. Provides that the Long-Term Care Advisory Board and the Illinois Long-Term Care Council shall review the report and suggest to the Department any changes deemed necessary, including how to investigate and substantiate anonymous complaints. Makes similar changes in the ID/DD Community Care Act. Effective immediately.


I.  Introduction.  In Illinois, the care of our elderly and disabled in nursing homes falls under the Nursing Home Care Act.  The state functions to support quality in nursing home care not only through the professional licensure process, but through implementation of standards and on-site reviews by the Illinois Department of Public Health (IDPH).  In the context of the legal and regulatory weave, citizen complaints provide an important voice in alerting the state to potential violations in standard of care.   The complaint process must at the same time protect the identity of the complainant (and by de facto, the possible family member who may still be under nursing home care); acquire necessary and sufficient information to proceed with an investigation; and guarding against fraudulent reporting.  Public Act 98-0988 seeks to address these tensions by incorporating an educational component to the reporting process and by establishing an annual review of the complaint process.

II.  Brief description of the law:  The law provides for the submission of electronic complaints to the IDPH, provides for transparency of the complaint intake process, requires the IDPH to let the complainant know that complaints with “less information” are “far more difficult to respond to and investigate,” and includes an annual review of the complaint process.

III.  Discussion and analysis:
        1.  Allowing for electronic submissions of complaints.  This section facilitates and decreases barriers to submitting complaints in our electronic age.  Currently, the IDPH uses a complaint form, accepts emails (, and phone calls (Central Complaint Registry, 800-252-4343).

       2.  Transparency in the intake process.  Here, the law ensures that the complainant can see on the website, or receive, upon request, a list of questions to be asked during the intake process.  This assists the department in ensuring the complainant understands what information the department finds necessary, and provides the complainant with a reassurance that he or she is being treated with a fair and standard process.

       3.  A requirement to let the complainant know that “complaints with less information are far more difficult to respond to and investigate.”   Of the four sections of the law, this one has the most complexity.  The language “less information” is general and therefore vague.  It does not specify which pieces of information would lead to a case that is more “far more difficult to respond to and investigate.”  Certainly, communicating more rather than fewer details about the potential nursing home violation itself would help the IDPH respond and investigate.   As far as disclosing the complainant’s own personal information (name, address, telephone number), the law specifies that the IDPH uses this information to allow for “appropriate follow-up.”  Such follow-up may indeed be of help in an investigation.  However, it is not clear in what manner and under what circumstances communicating less rather than more of the complainant’s personal information would lead to a case that is “far more difficult to respond to and investigate.”  The law, therefore, incorporates unspoken and undue pressure on the family (by the threat of inaction vis. their loved one) to give up their right to confidentiality in order to get a satisfactory response and investigation by the IDPH.

       4.  Annual review process.  The law specifies an annual review of the complaint process with attention to outcomes for anonymous and non-anonymous complaints.  This will allow for ongoing understanding and improvement of the complaint process.

IV.  Summary and opinion: The law takes an educational and information-based approach to improving the complaint process.  The law furthers the quality and effectiveness of the complaint process by adding electronic submissions, public education on the state’s intake questions, and an annual review process. However, the section on the consequences of “less information” is problematic.  If the law is reminds citizens of the state’s needs for complete information, it should also remind citizens of their right to protection.  Both should go together for this law to be in balance and therefore effective.

V.  Recommendations:

I recommend the following:

-A review of the decision to include the “less information” section as a “notice” vs. as “[made] available through the web and upon request.”

-That the law be revised to inform the complainant not only that “complaints with less information provided are far more difficult to respond to and investigate” but also that “the Department shall not disclose the name of complainant unless the complainant consents in writing to the disclosure or unless the investigation results in a judicial proceeding, or unless the disclosure is essential to the investigation” or similar language (as provided in Sec. 3-702 (c) of the Nursing Home Care Act).

VI.  Final comment. Not yet addressed here is the issue of fraudulent complaints.  The law, as currently written, will have the effect of deterring fraudulent complaints.  It will do so, again, via the “less information” section, where there is an implicit threat.  The thinking is as follows:  “If you don’t give us (IDPH) your name, we might not follow-up.”  Since someone reporting fraudulently would not give his or her name, this will have the effect of weeding out frauds.  The problem, again, is that the law will also weed out or cause undue stress to families with legitimate complaints but too afraid to give up their right to confidentiality.

The challenge is to rethink who we are as a people expressing ourselves through our legislation.  Do we squeeze out the vulnerable in order to squeeze out the criminal?  Or is there another way?  Our country has always supported the rights of the few.  This law can be improved with that in mind.    


Central Complaint Registry:

Complaint Form


Hotline: 800-252-4343

HB5348 – Crib Bumper Pad Ban

Senate Floor Pano

By Rabiya Bilfaqi, 2nd year law student, DePaul University College of Law
and Ben Margolis, M.D.

HB5348 Ban Crib Bumper Pads
Name of Sponsor: Representative Emily McAsey (D)85th District
Date Sponsored: 2/10/2014
Status: Pursuant to Senate Rule 3-9(b) / Referred to Assignments
Synopsis As Introduced
Amends the Children’s Product Safety Act. Prohibits a commercial dealer, manufacturer, importer, distributor, wholesaler, or retailer from selling, offering to sell, leasing, or offering to lease a crib bumper pad in the State. Imposes a civil penalty of not less than $100 and not more than $500 for each violation. Provides for the deposit of these civil penalties into the Attorney General Court Ordered and Voluntary Compliance Payment Projects Fund.

Accidents are among the leading causes of infant deaths nationally.  In Illinois in 2010, 55 out of 1116 infant deaths were from accidents.1  The importance of cribs and play environments is highlighted by product recall statistics.  In the last two years, the US Consumer Product Safety Commission has recalled more than 5 million cribs, bassinets and play yards.  Illinois House Bill 5348 seeks to eliminate accidental infant deaths due to one such product – crib bumpers pads. The bill amends the Child Product Safety Act and bans the sale of this product entirely.

What is the Child Product Safety Act?
The Child Product Safety Act regulates products that pose safety hazards to children. The Act covers car safety seats, children’s toys, and children’s furniture. The crib bumper ban pertains to the last category.

What is a crib bumper?
A crib bumper is a set of four pillow-like pads that are tied to the inside of a crib above the mattress.

What do we know about crib bumper dangers?
A baby can suffocate when wedged against a padded crib bumper or strangle by a bumper tie around the neck.  Between 2008 and 2011, the National Center for Child Death Review received 14 reports of infant suffocation in which a bumper was relevant in the death.2 A study in the Journal of Pediatrics (2007) looking at coroner and medical examiner reports of 27 accidental infant and toddler deaths concluded that “[crib bumper] use prevents only minor injuries. Because bumpers can cause death, …they should not be used.”3  The American Academy of Pediatrics notes that “there is no evidence that crib bumper pads protect against injury, but they do carry a potential risk of suffocation, strangulation or entrapment because infants lack the motor skills or strength to turn their heads should they roll into something that obstructs their breathing.”4

History of Crib Bumper Pad Legislation
In 2010, the Chicago Tribune reported that federal regulators failed to warn parents that crib bumper pads pose a suffocation risk to infants even though they knew about the hazard.5 Subsequently, the Food and Drug Administration reported the known risks associated with bumper pads including suffocation. In 2011, Chicago became the first city in the United States to ban the sale of baby crib bumper pads. This helped set the stage for the statewide ban on crib bumper pads and helped to raise awareness of the suffocation risk that crib bumper pads pose. There is an ongoing effort nationally to implement crib safety laws. In 2013, Maryland became the first state to enforce a complete ban on the sale of crib bumper pads. States like Texas, California and New York all have general crib safety standards, although they do not yet have laws specific to crib bumpers.

What does a safe crib look like?
Many states classify a safe crib as one that meets the following safety standards6 :
•smooth corner posts that extend 1/16-inch or less above end panels
•slats narrower than 2-3/8 inches apart
•a secure mattress support that does not release easily from corner posts
•no cutout designs on the end panels
•no tears in mesh or fabric
•no cracked or peeling paint to prevent lead poisoning
•no missing or loose screws, bolts, or hardware
•wood surfaces that are smooth and free from splinters, splits or cracks; no sharp edges, points, or rough surfaces

Crib Safety

Comment on Sudden Unexpected Infant Death Initiative
Medical examiners and coroners have moved away from classifying deaths as Sudden Infant Death Syndrome (SIDS). They are more likely to classify deaths as accidental, suffocation-related or with an unknown cause. SIDS is now being called Sudden Unexpected Infant Death Syndrome (SUID). The Center for Disease Control (CDC) states that “inconsistent practices in cause-of-death determination hamper the ability to monitor national trends, ascertain risk factors, and design and evaluate programs to prevent these deaths.”7 The CDC’s research on SUID focuses on efforts to improve data collected at infant death scenes and to promote consistent reporting of cause and manner of death for SUID cases.

Final Comment
At Autopsy Center, we know what families go through when they experience a loss.  And, in the world of grief, parental loss is profound.  Our goals is not only to support families during a loss, but to work to prevent such losses.  We support public health initiatives, such as HB5348, which save lives.

Product Safety Recalls
Resources for Bereaved Families

1 Leading Causes of Infant Death 2010. Illinois Department of Public Health website
3,4 Thach, Bradley T., George W. Rutherford, and Kathleen Harris. Deaths and Injuries Attributed to Infant Crib Bumper Pads. The Journal of Pediatrics 151.3 (2007): 271-74.e3. Web.
5 Gabler, Ellen. Federal Regulators to Study Safety, Suffocation Hazard of Crib Bumpers. Chicago Tribune., 12 Dec. 2010
7 CDC’s Sudden Unexpected Infant Death Initiative. Centers
for Disease Control and Prevention
. 10 May 2011. Web. 7 Sept. 2014.

Child Abuse Legislation and Reporting

By Candace McPherson (3rd year law student, DePaul University College of Law) and Ben Margolis, M.D. (Director, Autopsy Center of Chicago).

As in other years, 2014 has seen the introduction of bills which protect our children from abuse and neglect. Here are a few:

SB3146 DCFS – Differential Response Programs
This bill mandates and supports ongoing use of Differential Response Programs – a multifaceted approach to child abuse investigation and intervention increasingly in use nationwide.

SB3223 DCFS – Child Abuse – Medical Reports
This bill mandates the timely inclusion of medical records during an investigation by the Department of Children and Family Services (DCFS).

HB5487 DCFS – Abuse Reports – Disabled Kids
This bill provides for the involvement of trained professionals when a DCFS investigation centers on a child with a language disability.

Why are these bills important?
Child abuse is a major social issue. Last year, nearly 3 million cases of child abuse were reported in the United States. However, despite these numbers, child abuse often goes unreported. A study, which was reported in the international journal Child Abuse & Neglect in 2000, showed that 65% of social workers, 58% of physician assistants, and 53% of physicians were not reporting all cases of child abuse. Among the reasons for failing to report incidents included: lack of certainty that abused occurred, community resistance, belief that report would cause additional harm, the need to maintain good relationships with patients and clients, insufficient evidence, and confusion about what types of injuries required reporting. Although experienced in your own profession, you may have similar issues and concerns when it comes to child abuse reporting. It is important to do the right thing.

How are abuse and neglect defined with regards to children? Child abuse is the mistreatment of a child under the age of 18 by a parent, caretaker, someone living in their home or someone who works with or around children. The mistreatment must cause injury or put the child at risk of physical injury. Child abuse can be physical (such as burns or broken bones), sexual (such as fondling or incest), or mental and emotional. Neglect happens when a parent or responsible caretaker fails to provide adequate supervision, food, clothing, shelter, hygiene or other basics for a child.

What happens to abused children? The long-term effects of child abuse can be very damaging to the child being abused or neglected. Common problems for abused children as they age include emotional problems (e.g., low self-esteem and poor self-perception), behavior problems, and poor performance in school and at work. Remember, the effects of child abuse go far beyond the individual child. 95% of child abusers were themselves abused as children. Child abuse can become a vicious cycle across generations.

Who are mandated reporters of abuse and neglect?
The list of mandated reporters is lengthy (please see the Illinois Department of Children and Family Services website). It includes funeral home directors, social workers, physicians, nurses, teachers, school personnel, child care workers, educational advocates, and so on. All are required to take action when there is a concern – either one they perceive or one they learn about.

What are the violations for willful non-report? Willful non-reporting or participation in schemes to prevent revelations of abuse are covered by law as well. Penalties range from Class A misdemeanor to Class 2 Felony depending on the degree of criminal participation and number of prior violations. The penalties are reviewed here (from least severe to most severe):
• Class A misdemeanor – usually results in a fine up to $2,500 and imprisonment in jail up to 12 months, or both.
• Class 4 felony – may include between 1 to 3 years in State Penitentiary and/or a fine up to $25,000.
• Class 3 felony – may include between 2 to 5 years in State Penitentiary; and/or a fine of up to $25,000.
• Class 2 felony – may include between 3 to 7 years in State Penitentiary and/or a fine up to $25,000.

How can a professional participate? Some professionals come into contact with families and children through defined roles which focus on children: pediatricians, teachers, school nurses, and so on. Other professionals interact with adults primarily, but children may be present during these times. For example, funeral directors may see children during the pre-need interaction. Children are often present at a funeral. And so on. Keep your eyes open. See the end of the article for tips on what to look for. If you have a concern, report directly to the Department of Children and Family Services (DCFS) or to a law enforcement agency in the county where the child lives. A majority of reports are initiated by calls from mandated reporters. You are joining many dedicated professionals by reporting if you have a concern.

Where to report? A report of abuse or neglect made to:
DCFS Child Abuse Hotline
(800) 25-ABUSE

The Hotline is located at the Department’s State Central Register in Springfield and is available to take reports of abuse or neglect 24 hours a day, 7 days a week. Anyone may report suspected child abuse or neglect. The report should include the victim’s name and address, the reason that the abuse or neglect is suspected and information about the abuser.

Reporting Child Abuse; Illinois Department of Children and Family Services. Available online.
Child Abuse & Neglect, The International Society for Prevention of Child Abuse and Neglect, North Carolina, 2000.

*Modified from:, A Trusted Non-Profit Resource, Child Abuse & Neglect. Available online

What to look for:

Physical Abuse

Weight change Child is significantly underweight or obese.
Bruising Discoloration of the skin, unusual bruises, unexplained bruises or welts, difficulty walking or sitting.
Burns Multiple burns or in various stages of healing. Look for patterns (e.g., cigarette butt, grid).
Injuries Swellings to the face and extremities, fractures in unusual places, high incidents of accidents or frequent injuries. Injuries which appear to have a pattern such as marks from a hand or belt.
Behavior Shies away from touch and avoids physical contact with others, flinches at sudden movements, apprehensive when other children cry, wears clothing to conceal injury, seems frightened by parents or caregiver and makes strong efforts to avoid a specific person, overly compliant or withdrawn, or seems afraid to go home. Excessively withdrawn, fearful, or anxious about doing something wrong and shows extremes in behavior.

Emotional Abuse The behavioral signs of emotional abuse include negative statements about self, shy, passive, compliant, child lags in physical, mental, and emotional development, highly aggressive, overly demanding, and cruel to others.

Sexual Abuse Walking or difficulty sitting, torn clothing, pain or itching in genital area, venereal disease, or pregnancy. The behavioral signs include inappropriate displays of affection, sexual acting out, sudden use of sexual terms or new names for body parts, sleep problems including insomnia, nightmares, or refusal to sleep without a light, regressive behaviors including thumb-sucking, infantile behaviors, and a sudden change in personality.

Neglect Clothes are ill-fitting, dirty, or inappropriate for the weather (wearing a long-sleeve shirt to cover up injuries on a hot day). Hygiene is consistently bad (unbathed and unwashed hair), untreated illnesses and physical injuries. The child is frequently left unsupervised or alone or is allowed to play in unsafe situations.

Recent AMA postmortem communication guidelines favor hospitals over patient rights

Justice image
In the fall of 2013, the AMA published new guidelines for communication between hospitals, coroners and families after an unanticipated or unexplained loss. These guidelines protect the interests of hospitals over the rights of families; and, in at least one state, the guidelines violate the law. Summary opinion: In need of revision.

The passages of concern are as follows:

“5. f. Upon request, the medical examiner should provide information to next of kin regarding options for obtaining an independent autopsy or a review of the medical examiner’s findings and conclusions….

6. e. Upon request, the hospital should provide information to next of kin regarding options for obtaining an independent autopsy or review of the hospital pathologist’s findings and conclusions.

7. When the medical examiner declines jurisdiction, and the hospital declines to conduct an autopsy, the hospital should provide information to next of kin regarding options for obtaining an autopsy elsewhere.”

After a sudden or unexplained death, questions arise. When the state suspects a suspicious or criminal cause of death, the medical examiner will perform the autopsy. If there is no such concern, there may still be other parties interested in learning the information found through autopsy examination. These parties are typically the family and the medical provider (e.g., clinicians and hospital). At simplest, families may request an autopsy for purposes of closure — to learn why their loved on died. Hospitals and providers undertake an awesome responsibility in their care of patients. They may want to learn about undiagnosed medical conditions — undiagnosed despite the best medical care; or undiagnosed because the patient was previously well and not under care.

However, the time of loss is as complex as the system in which it occurs. Many times, the scent of litigation wafts in and out of what should ideally be tender interactions during a family’s difficult time.

Additionally, many families do not even know they have the right to request an autopsy. A larger fraction do not know they have the right to choose a service provider. The autopsy does not have to be performed at the hospital where the medical care was provided. Families who do know this sometimes opt to have their loved one’s autopsy performed at a location separate from where the care was provided. Rightly or wrongly, the decision is often guided by a “fox guarding the hen house” concern. Nonetheless, families are free to make a choice because they know they have one.

These guidelines reflect the AMA’s understanding of the ever-present backdrop of litigation. They keep the autopsy under control of the hospital — where the patient death may have occurred. And, furthermore, the guidelines favor that the medical examiner participate with the same goal.

These guidelines keep families in the dark about service options thereby keeping the hospital “in control” of the case. They do not inform families that they may request an alternate service provider. They give the hospital “first dibs” on the autopsy. Only “upon request” will the hospital or coroner provide names of an “independent autopsy” service provider.

Furthermore, only when the hospital or medical examiner “declines” the case (e.g., neither wants the autopsy) are these institutions to recommend to the family that they may seek an independent provider or independent consultation.

While making no statement here in favor or against the practice of litigation, these guidelines are comparable to a hospital recommending their “in-house” lawyer review the family’s legal case before letting the family know they may seek their own counsel. While most families know they may find their own lawyer; most do not necessarily know they may find their own autopsy service provider. And these guidelines ensure that vulnerable families will continue to be kept in the dark.

Against the Law
Connecticut law (Sec. 19a-286) requires that hospitals inform families in writing that they may request an autopsy with a provider of their choosing.

“Any person authorized to consent to an autopsy….may make arrangements for an autopsy to be performed at any institution that routinely performs autopsies…. Information concerning the rights and responsibilities under this subsection shall be contained in the institution’s patient bill of rights….The institution shall provide such information in writing in a language understood by the person who assumes custody of the body of the deceased person prior to the signing of an autopsy consent form by the person who assumes such custody.”

The AMA, a national organization, therefore provides guidelines that would be illegal in this state. It does so by withholding rather than providing the family with information about service options at the time of death, unless certain criteria are met.

An alternative for the AMA
Lastly, if hospitals are interested in preventing litigation, the AMA should consider why families litigate. Medical mishap is but one factor. The quality of the relationships between families and providers is as important if not more so. And, for better of worse, a family’s perceptions (and misperceptions) drive their attitudes and behavior. Sometimes, it’s the difficulty and pain of a loss that turns into anger and blame. Law suits follow.

Nonetheless, there is the important option of actively rebuilding trust during these difficult times. And this comes from openness and communication.

The success of the current trend in “I’m sorry” laws supports this; as does the data for a hospital such as the University of Michigan, which routinely admits and addresses medical error. Litigation rates at the University of Michigan are well-below national average.

I recommend the AMA revise these guidelines with the Connecticut law in mind.

Let families know their options for autopsy service providers right at the time of the loss.

It is simply their right to know.

Maybe then the family will trust the hospital to do the case.


HB4202 (Embalming Absent Instructions)

HB4202 – Embalming Absent Instructions
Date filed: 1/13/2013

I. Introduction
Bill HB4202 (Embalming Absent Instructions) is structured to address family indecision or unresponsiveness in communicating their embalming and/or refrigeration wishes to the funeral director. While the bill functions to ensure timely disposition of the deceased, the bill takes insufficient steps to support the broad rights of families to control disposition and does not acknowledge or compassionately manage bereavement issues impacting these families.

II. Insufficient informed consent
The bill misses an opportunity to engage the family at the outset; and presumes there is no recourse with an “unresponsive” family but to act without them. Specifically, the bill provides (Part b) that the “[funeral director] licensee shall clearly disclose on the written statement … that it is required to embalm or refrigerate … after 48 hours.”

The family, however, is always present when the body arrives at the funeral home. There is a window to address needs then. The bill’s language would make sense for unidentified indigent cases (where the funeral director must act without any possibility of family input). But that is not the case here.

The language of the bill is comparable to a surgeon showing the patient a notice that the surgeon is required to “amputate or perform a skin graft…after 48 hours” if the patient does not say what he wants by then. While there is an obligation for the patient to participate, no individual should lose such control in this manner.

Additionally, informed consent is a process, not a notice. Decisions without patient input are made during emergencies, when the patient is unconscious, or when the Next of Kin is not available. They are not made when there is any degree of planning available.

III. Bereavement concern
In addition to being distraught and distracted immediately after a loss, families struggle profoundly during their time of grief. Indecision is often related to these deep internal struggles and the need to communicate with family members. While that is not an excuse for unresponsiveness, the bill does not go far enough to make clear to the family their need to come to a decision. The bill ignores the emotional basis for family’s behavior and excludes the family from the decision making process by utilizing a simple “notice.”

IV. Litigation concern
A family who can barely concentrate during an initial meeting with a funeral director and who comes back 48 hours later to find their loved one embalmed against their (intended) wishes will be an angry family. And, for better or worse, angry families litigate. While the funeral home’s defense will be that “they showed the family the notice,” the family will claim the opposite. This is a set up for a destructive process, a broken relationship with the funeral home and a poor family experience. A simple “notice” cannot function to comprise adequate communication in the setting of bereavement.

V. Autopsy concern
Autopsies are best performed prior to embalming. A family sorting through a decision whether or not to request an autopsy request may be unable to have their bereavement needs met if the body is embalmed without their consent.

VI. Recommendation
To protect the funeral home, maintain public health standards, ensure the rights of families, support the family’s bereavement, and best allow for autopsy needs, I recommend the following (or similar language):

1. Substitute the language “disclose on the written statement … etc.” with a requirement that the funeral director must provide the family with a “Short Family Form” (see 4., below)
2. Require the family to complete and sign the Short Family Form.
3. Require the funeral director to complete a “Refuse to Sign” form if the family refuses to sign the Short Family Form (This is comparable to HIPAA law requiring the physician to specify the patient refused to sign that they received a “Notice of Privacy Practices.”)
4. Include the following, on the Short Family Form:
“I represent that I, ______________________________, am legal next of kin or power of attorney for health care of the deceased __________________________ (name of deceased).
I understand that, by law, I must inform the funeral director of my decision to embalm or refrigerate the body within 48 hours of the body’s arrival to the funeral home.
In the event that I do not communicate my wishes to the funeral director within 48 hours, I authorize the funeral home to (check one only):
____ Embalm the body
____Refrigerate the body but not embalm the body
____Either embalm the body or refrigerate the body
____I am unable to specify my wish at present. I understand the funeral director will still be required to either embalm the body and/or refrigerate the body at his or her discretion.
I understand that the funeral director will follow these instructions only after 48 hours have passed from the time the body arrived at the funeral home and not before.

I understand that I am responsible for payment of service for either embalming or refrigeration which occurs as a consequence of specifications within this Short Family Form.
(Signature line)
(Date/Time line)”

VII. Final comment.
In summary, I recommend you either table this bill or tackle it “head on” by amending it to meet full standards of informed consent and accountability that I know you champion here in Illinois. Alternatively, or in addition, you may wish to consider the issue of why many funeral homes do not have refrigeration.

Thank you for your hard work on behalf our citizens.

Letter to Illinois Senate (Nursing Home – Violation – Review)

House Bill 5849

Financial Institutions

Chairperson:  Jacqueline Y. Collins

December 28, 2012


I.   Introduction:

House Bill 5849 creates a review team to ensure that nursing home type “AA” and “A” violations meet uniform standards prior to the issuing of such violations to a nursing home (licensee).  However, apart from the above intent, there is a discrepancy between the language and structure of the bill and the language and structure of the Nursing Home Care Act itself.


II.  Background:  Nursing Home Care Act

The Nursing Home Care Act is an expansive law providing for, among many things, oversight of nursing homes.  As such, and in order to ensure effective oversight, this law provides great detail.  Specifically, the law provides clarity on the time course of the violation review process and assigns authority for all participants.


A.  Re:  Time course of the review process

The relevant areas here are as follows (Sec. 3-301 and Sec. 3-212 (c)):

A – The [nursing home inspection team] provides a copy of their report to the facility prior to leaving the facility.

B – The facility has 10 days to provide the state with a response to the report.

C – The Director has 90 days to determine if there is a violation.

D – If a violation is found, the Director has 10 days to notify the facility.


In summary, the overall process allows for 100 days between a site visit and the issuing of a violation (90 days for review and determination plus 10 days to issue the violation).

Comment:  The specified time course provides more than an effective framework.  It supports a fundamental principle of our democratic society:  equality under the law.  Each participant here is important:  the nursing home, the nursing home inspection team, the Director, and, above all, the patient at the facility.  Each participant is given due consideration in that each is clearly designated a specific time to prepare their part.  The process is clear.

In addition, the timeliness ensures action thereby protecting patients who may remain at risk in their present environment.


B.  Re:   Specified Authority

Each participant in the Nursing Home Care Act is designated a specific authority:  the nursing home inspection team, the nursing home, the Director, and so on.


III. House Bill 5849:  Time course

          House Bill 5849 places the work of the newly created review team during part C above – the 90 day review period.  However, departing from the clarity of the Act, House Bill 5849 does not provide for a time course for the work of the review team.  In this regard, the bill adds a “vagueness” to the process.  The result is that the bill ceases to protect all participants in the process and undermines the role of the state.

Further, the bill requires the review team to analyze “all available data” in relation to a violation.  Such an undertaking could be potentially expansive.  In the extreme, a review team may use up the 90 day period by researching state data.  This may impinge on the important need of the state to determine and report a violation.  While the bill may make the process more equitable on one level, the timeliness is there to protect patients who may, in fact, be in a dangerous situation.  It may place patients at risk.


IV. House Bill 5849:  Assigned Authority

          House Bill 5849 does not specify the review team’s authority.  As the review team’s role is positioned between the nursing home inspection and the Director’s review of any report, it would seem that the intent is to have the review team either allow or prevent reports from coming to the attention of the Director of Public Health.  However, the exact role is not made clear and other possibilities exist (see below).


V.  Summary

The bill addresses the important issue of standardization of violation review.  Such a goal is commendable so that Nursing Homes may be treated equitably throughout the state.

However, especially with type “AA” and “A” violations, in which death of a patient is the concern, any change in the process must also continue to ensure that serious violations are reported in a timely and effective way.  In its current form, the bill does not meet the standard of the original law in terms of providing a time course (and therefore effective structure); or in specifying the authority of the review team.  It therefore undermines the democratic standard of “equal voice”; and may put patients at risk.


VI.  Recommendations

1.  Designate a specific amount of time the review team may have to review and analyze “state data and precedents” and complete their report, for example 60 days or some other reasonable length.

2.  Delete the word “all” from the phrase “all available data and precedents” or provide for language that creates similar effect.

3.  Specify that the review team’s determination will not add to the 90 days already allotted to the Director to complete the process.

4.  Specify the authority of the review team.  There seem to be three options here:

-A review team authorized to prevent a report from being reviewed by the Director.

-A review team authorized to amend a report or offer a preliminary opinion prior to forwarding to the Director, but without authority to prevent a review and determination by the Director.

-A review team functioning more as an educational, training, or quality assurance task force, but with no authority.  While this would serve an important function, in this case, it would be more appropriate for the review team’s work to be positioned after the Director completes his or her determination so as not to interfere with timeliness of reporting.


VII.  Final comment

            As legislators, you are, of course, in a position of power over the lives of Illinois citizens.  Please remember that type “AA” violations cause the death of a patient – elderly, disabled or mentally ill – under the care and responsibility of a nursing home.  Current law allows 100 days – or about 3 months – to serve notice of violation, if need be.

You must decide how long you are willing to have these patients wait while the review team engages in its research.  Four months?  Five months?  A year?  And remember that, during this time, other patients are living under the same conditions.

To protect these patients and ensure the confidence of Illinois citizens – whose loved ones reside in these homes  I recommend amending the bill so that it:

-includes a clear and definite time course for notification of violations in the context of the review team

            -balances the review process among all participants

In so doing you will allow the bill to sit as an outstanding addition to the major legislative success of the Nursing Home Care Act.

Thank you.