Hepler Broom, LLC

Involuntary Discharges and Transfers in Illinois: A Guide for Nursing Homes in the Pre-Hearing Stage

April 22, 2019

Illinois law provides specific rules that nursing homes must follow when discharging or transferring a resident when the resident does not agree to the discharge/transfer (an “involuntary discharge/transfer”). 210 ILCS 45/3-401 et seq. If the resident requests a hearing on the discharge/transfer, an attorney must represent the nursing home during the hearing/appeal process if the nursing home is operated by a corporate entity or limited liability company. Stone Street Partners, LLC v. The City of Chicago Dept. of Admin. Hearings, 2014 IL App (1st) 123654. Before the hearing, however, the nursing home must follow specific rules to facilitate the resident’s discharge/transfer.

Illinois Rules on the Pre-Hearing Involuntary Discharge/Transfer Process

An Illinois nursing home may involuntarily discharge/transfer a resident for the following reasons: 1) medical concerns 2) to protect the resident’s physical safety 3) to protect the physical safety of other residents, facility staff, or facility visitors; 4) late payment or nonpayment. “Late payment” means the nursing home has not received payment 45 days after sending the resident a bill. At that time, the nursing home must send another notice to the resident for payment due “within 30 days.” If 30 days passes without payment, then the nursing home may start the involuntary discharge/transfer process. 210 ILCS 45/3-401.

Once the nursing home decides to discharge or transfer the resident, the nursing home must issue notice of the discharge/transfer. The notice must be issued on a form approved by the Department of Public Health and include the following information:

(a) The stated reason for the proposed transfer or discharge;

(b) The effective date of the proposed transfer or discharge;

(c) A statement in not less than 12-point type, which reads “You have a right to appeal the facility’s decision to transfer or discharge you. If you think you should not have to leave this facility, you may file a request for a hearing with the Department of Public Health within 10 days after receiving this notice. If you request a hearing, it will be held not later than 10 days after your request, and you generally will not be transferred or discharged during that time. If the decision following the hearing is not in your favor, you generally will not be transferred or discharged prior to the expiration of 30 days following receipt of the original notice of the transfer or discharge. A form to appeal the facility’s decision and to request a hearing is attached. If you have any questions, call the Department of Public Health at the telephone number listed below.”;

(d) A hearing request form, together with a postage paid, preaddressed envelope to the Department; and

(e) The name, address, and telephone number of the person charged with the responsibility of supervising the transfer or discharge.

210 ILCS 45/3-403.

To obtain a copy of the form required by the Illinois Department of Public Health, contact the Department directly or visit www.dph.illinois.gov. The nursing home must place a copy of the notice in the resident’s clinical record and give a copy to the Department of Public Health, the resident, and the resident’s representative. 210 ILCS 45/3-405.

The resident’s discharge/transfer date must be at least 21 days from the date of the discharge/ transfer notice, unless the discharge/transfer is an emergency. Emergency discharges/transfers can be made when the resident’s attending physician orders the transfer or discharge because of the resident’s medical needs. Emergency discharges/transfers can also be made to protect the physical safety of other residents, facility staff, or facility visitors. In that case, the nursing home must notify the Department of Public Health prior to the involuntary discharge/transfer. 210 ILCS 45/3-402.

Finally, an emergency discharge/transfer can be made when an “identified offender” is admitted during a provisional admission period. 1 The “provisional admission period” is the time between admission to the nursing home and three days following the nursing home’s receipt of the Identified Offender Report and Recommendation. If the Report and Recommendation shows that the “offender poses a serious threat or danger to the physical safety of other residents,” staff, or visitors and the nursing home determines it cannot provide a safe environment for its residents, staff, or visitors, the nursing home shall discharge or transfer the resident within three days after it receives the Report and Recommendation. Id.; 210 ILCS 45/1-120.3.

Hearing Process

If the resident requests a hearing within 10 days of receiving the written notice, the Department of Public Health will hold a hearing at the nursing home. The nursing home should retain an attorney to represent it throughout the hearing process. Under Illinois law, nursing homes operated by limited liability companies and corporations must be represented by an attorney at administrative law hearings. Stone Street Partners, LLC v. The City of Chicago Dept. of Admin. Hearings, 2014 IL App (1st) 123654. Moreover, the appeal process can be complicated, and an attorney will be very helpful in questioning witnesses and providing evidence during the appeal hearing.

1 An “identified offender” is one who has been “convicted of, adjudicated delinquent for, found not guilty by reason of insanity” or found unfit to stand trial of a felony offense of Section 25 of the Health Care Worker Background Check Act (certain exclusions apply) or any sex offense listed in Section 10(c) of the Sex Offender Management Board Act.