Illinois Appellate Court Affirms That Nursing Home Care Act Deadline is Directory Rather Than Mandatory – UDI #10, LLC v. Department of Public Health

As part of an effort to reform Illinois nursing homes, government agencies are attempting to increase their oversight of potential nursing home violations. When the Department of Public Health went to investigate potential nursing home policy violation at an Illinois facility, the Illinois nursing home facility accused the health agency of failing to follow the proper investigation procedures in UDI #10, LLC v. Department of Public Health, No. 1-10-3476 (February 1, 2012).

The nursing home investigation arose after a nursing home patient, herein called R1 to protect his/her identity, died as a result of a choking incident at Pekin Manor. This was the second time R1 had experienced a choking incident in the course of one day. When R1 became unresponsive his wife called a staff member for help. The staff member called the paramedics, but did not perform CPR while waiting for their arrival. R1 was transported to the hospital by the paramedics and ended up dying later that day.

The nursing home facility was operated by UDI #10, LLC (UDI) and had specific policies and procedures in place regarding a similar situation. The policy dictated that a UDI staff member was to stay with R1 and that a staff member was to accompany the paramedics to R1’s room. In addition, the staff member should have performed CPR while awaiting the paramedics’ arrival; the only reason CPR should not have been done was if R1 had a valid do-not-resuscitate (DNR) order in his chart. And while R1 and his wife had signed a DNR order, it was invalid because it was not signed by a doctor.

The various inconsistencies and potential violations were reported to the Illinois Department of Public Health for investigation. The Department then issued a notice to the UDI citing a Type A violation of the Nursing Home Care Act. Upon receipt, UDI moved to dismiss the charge for lack of jurisdiction on the basis that the Department’s notice of violation was outside of the 60-day timeframe required according to §3-212(c) of the act.

The Department responded by stating that UDI had cited the wrong section of the Illinois Nursing Home Care Act. Section 212(c) deals with violations found pursuant to inspections, while §3-702(d) applies when “a person who believes that this act may have been violated may request an investigation.” And while §212(c) does require a mandatory determination date not later than 60 days after completion of the inspection, survey, and evaluation, §702(d) does not. Instead, §702(d) suggests that an investigation must begin within 30 days of the occurrence; however, it does not mandate a time limit for the investigation’s conclusion.

And while the Department of Public Health failed to meet either deadline, it was not required to do so. The 60 day deadline set out in the non-relevant §212(c) is mandatory; however, the 30 day deadline set out in §702(d) is not. Therefore, because the Illinois Appellate Court found that the language of the controlling statute section was permissive, the Department’s failure to notify UDI of its violation did not take away the Department’s jurisdiction. Therefore, the Department’s notice of the Type A violation against UDI stands and the investigation will continue into its potential nursing home negligence.

Kreisman Law Offices has been handling Illinois nursing home abuse cases for individuals and families for 36 years in and around Chicago, Cook County, and surrounding areas, including Evanston, Schiller Park, Countryside, Woodridge, Willow Springs, Arlington Heights, Barrington Hills, Deer Park, and Fox River Grove.

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