House Bill 5849
Chairperson: Jacqueline Y. Collins
December 28, 2012
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).
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.
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.