Restraining Order Entered in Intrafacility Transfer Case Involving Nursing Home with Distinct Part Certification
Earlier this week the chancery court (Case No. 00 CH 3689 Judge Moshe Jacobius) granted a 10 day TRO in a threatened transfer from a locked unit to an unlocked unit. Illinois permits distinct part certification (meaning nursing homes are permitted to be licensed for Medicaid, but to only have a limited number of beds actually approved for Medicaid. This means that if client has been in such a facility, and runs out of money the facility can assign beds on a waiting list basis, and client may not have a bed to move to.
Besides the usual injunctive relief arguments, we had to also argue Medicaid discrimination was the real motivation behind the move. We had brought the case under the Illinois Nursing Home Care Act (210 ILCS 45/1-101, et seq), seeking injunctive relief, attorney's fees, and other relief. We asserted that the nursing home cannot use its distinct part Medicaid certification as a defense where, as here, the segregation of the resident is for other than her care needs (citing Surveyor's Guideline to 42 C.F.R. section 483.12(c), contained in HCFA Transmittal No. 274 (June 1995). The court order contained a finding that Plaintiff has stated a sufficient basis for a temporary restraining order, based on the court's review of the pleadings, and further finds that there is no alternate remedy, that there may be irreparable harm to Plaintiff regarding her health, safety, and welfare, and Plaintiff has made a sufficient showing as to the ultimate merits of the case, and that the benefits to the Plaintiff outweigh the detriments to Defendant.
The order went on to say that a 10 day temporary restraining order is entered enjoining and restraining the nursing home from involuntarily transferring the resident from the locked unit to the unlocked unit, and lastly the matter was continued to March 20 at 10 a.m. on the resident's Motion For Injunctive Relief. By way of background, we had attached an affidavit from a nationally prominent geriatric care manager (Elizabeth Bodie Gross out of Barrington) that the resident's care needs could not be met in the unlocked unit (which is on the second floor of the facility) because, when awake, she was highly mobile and could easily move to an unsafe place, including into the stairway (or elsewhere) and potentially suffer great harm and injury as a result.
Thanks go out to Eric Carlson, attorney with Beth Tzedek Legal Services in Los Angeles and Steve Levin in Chicago. Eric helped me with the legal basis for getting past the distinct part barrier. Steve helped me come up with an approach to tie the case to the Illinois Nursing Home Care Act.
Obviously, the battle continues. Stay tuned.