Investigating Nursing Home Abuse and Neglect in Illinois

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While the IDPH process is taking place, you should consider:

• Moving your loved one to a safer place as soon as possible
• Consulting with a lawyer to determine whether you should file a civil lawsuit.

We conclude this chapter by discussing the approach a lawyer may take if you pursue a civil claim based on the suspected abuse or neglect. (In our next chapter, we discuss what you should consider when moving your loved one to a new home.)

How IDPH Investigates Reported Cases of Abuse or Neglect

Illinois law gives the IDPH the authority to license nursing homes in our state. As a result, IDPH can investigate complaints involving its licensed facilities and take action if its finds a violation of nursing home regulations.

Here’s how the process works:

First, after getting a complaint, the IDPH must start an investigation within:

• 24 hours if the complaint indicates the resident faces imminent danger
• 7 days if the complaint alleges abuse or neglect
• 30 days for all other types of complaints.

It’s important to know: IDPH will not disclose your identity as the complainant. Also, neither you nor your loved one can be subjected to any transfer, discharge or other form of retaliation simply because you made a complaint.

The more information you provide in your complaint, the easier it will be for IDPH to respond to it and conduct its investigation. You can expect this investigation to involve an on-site inspection that includes:

• Interviews with your loved one, other residents and staff members
• The inspectors’ observations of the facility and its residents
• Review of records at the facility.

Within 10 days after the IDPH determines whether a violation has occurred, it will send a notice to the nursing home (and you should get a copy, too, if you gave your name and contact information to IDPH).

A nursing home violation can fall within four categories, depending on the nature of the condition or occurrence that gave rise to the violation:

• Type AA – Proximately caused a resident’s death
• Type A – Creates a substantial probability that the risk of death or serious mental or physical harm will result or has resulted in actual physical or mental harm to a resident.
• Type B – More likely than not to cause more than minimal physical or mental harm to a resident
• Type C – Creates a substantial probability that less than minimal physical or mental harm to a resident will result therefrom. (Section 1-132 of the Act)

The IDPH can take administrative actions that include:

• Requiring the nursing home to follow a plan of correction
• Assessing a fine
• Putting the facility on “conditional license” status
• Suspending or revoking its license.

Any nursing home that is in violation of nursing home regulations is deemed under Illinois law to be a “public nuisance.” The Attorney General has the power to seek an injunction. This could stop a nursing home from its abusive or negligent practices, or it could stop the facility from operating in any capacity.

If you are dissatisfied with the IDPH’s determination, you can request a hearing. You must submit your request in writing within 30 days after you get the IDPH’s determination. The IDPH must hold the hearing within 30 days.

As part of this hearing, a hearing officer can compel a nursing home to produce records or other documents. It can also compel people to testify under oath. The record and transcript in this hearing may be useful later on in pursuing a lawsuit.

If a nursing home licensee, owner or administrator or others fail to comply, it can be held in contempt of court. You may participate and be represented by a lawyer at this hearing.

Within 30 days after the hearing, the hearing officer will make findings of fact and reach an administrative decision. If you wish to appeal the hearing officer’s decision, you can file a complaint in Illinois Circuit Court.

How Pursuing a Nursing Home Abuse or Neglect Claim Would Work

• Much of the information from the IDPH’s investigation, finding of a violation and hearing can be used in a personal injury or wrongful death claim against a nursing home. An attorney may also conduct an independent investigation into the case.
• A lawsuit would need to be filed within two years after the injury was discovered and no later than four years from the date of the injury. If the lawsuit alleges wrongful death, it would need to be filed within two years from the date of death.
• After a lawsuit is filed, both your attorney and attorneys for those named in the lawsuit – typically the nursing home licensee, owner, administrator and/or staff member involved – will engage in a process called “discovery.”
• Discovery is a way to formally request information, including medical records, facility records and relevant communication among staff members. Sworn statements called depositions and affidavits may also be taken.
• At some point, your attorney will make a demand letter to the other parties. It may be a demand that requests certain actions be taken and/or compensation provided for the medical expenses, pain and suffering and other harm caused.
• The demand letter may begin a series of negotiations that result in a settlement. If no settlement can be reached, all sides can present their case to a jury at trial. The jury will then render a verdict on whether the nursing home is liable and the amount of damages that should be awarded.
• If either you or another party is dissatisfied with the trial outcome, the case can be appealed.
• You should know that, even during or shortly after a verdict, a settlement may still be reached.
• Once a settlement or verdict is final, the funds from the award must be distributed. In many cases, a private health insurer or government program such as Medicare or Medicaid must be reimbursed from the award funds before it will be distributed to you and/or your loved one.