DRE Investigation: Determining the nature of the nursing home violation and the amount to be fined.
Litwiller wrote that Donna Sonnenberg’s care at Mill View was unfortunately not too unusual, in this case pointing to Aren’s absence from the home until the bedsore had gotten very bad:
“While this is not an acceptable standard of care, it is typical of physician involvement in most nursing homes.”
He concludes his memo: It was a good experience for me to have had a conversation with Mr. and Mrs. Sonnenberg at their home. Through someone’s fault their daughter is dead. At this point I would believe that Mill View is a principal contributor. With this perspective, we should consider a Class “A” violation against the nursing home. I would recommend that Mr. Uhlig and our legal section review all of the available documentation in considering their final determination. Two weeks later, on April 16, DPH officials did four things.
First, DPH Director William Kempiners ordered Irvine to review the department’s findings to see if it would be possible to cite Mill View with a type A violation.
Second, Kempiners ordered that DPH scrutinize Weiss Hospital’s involvement. Third, he asked the Department of Registration and Education (DRE) to examine Aren’s treatment of Donna. And finally, DPH Legal Advisor William Radkey sent the Sonnenbergs a summary of DPH’s position in the case.
He wrote that DPH had notified Mill View of B and C violations on February 23; that the facility had submitted a plan of correction for the violations; that DPH “is currently reviewing its initial findings to determine whether any other violation” had been committed; that the department had asked DRE to evaluate Aren’s conduct; and that the Sonnenbergs had the right to a hearing “to review or contest the department’s determinations regarding the complaint investigation.” A week after that, on April 24, DPH nurse investigator Carole Hinich reviewed Sonnenberg’s medical records; she was unaware of the first investigation, so her bosses could use this impartial review to assess the initial report’s adequacy. Also on that date, Fred Uhlig ordered William Irvine to investigate the department’s handling of the entire case. Irvine assigned Judy T. Weber and Frank Moore of the central and southern offices.
They reported on May 13, basically outlining what we have described in the last few paragraphs. They also reported that the regional administration had in their opinion failed to comply with the Nursing Home Care Reform Act of 1979 and had “failed to respond to the immediate needs of the Evanston-North Shore Health Department; the resident, Donna Sonnenberg and her family; and the Department of Public Health.”
The complaint had not been reduced to writing or logged in with time and date; a notice of violation had not been given to the facility; and Elaine Washington’s report of January 28 hadn’t been transferred to the appropriate DPH form, so that no plan of correction was received from Mill View (this was her first investigation; her supervisor hadn’t told her to fill in the right forms). Also, in cases of alleged type A violations (as Evanston-North Shore had recommended), supervisors (i.e., Helen Byrd) are to determine the immediate course of action. She didn’t. Though both internal investigations cast a bad light on Byrd’s handling of the case, neither apparently showed any fault with Kristopaitis’s and Schaffer’s investigation. In their summary, Moore and Weber mention visiting the Sonnenbergs.
“During our visit . . . it became apparent that they had spoken with many commentators and many of the explanations were contradictory. The conflicting statements left them with the opinion that they were getting the ‘run-around,’ or that the Department was concealing some activity. Taking into consideration the emotional state of the parents, there does seem to be some validity to their statements, and most of this deals with the classification of the deficiency as Type ‘A’ or Type ‘B’.” This sets the tone for the Sonnenbergs’ subsequent dealings with DRE and explains their feeling that state agencies are at best incompetent, at worst crooked. Whatever the internal problems in its investigation, the Department of Public Health corrected its initial error relatively quickly and decisively. Its communications with the Sonnenbergs were informative and honest. As we will see, the Sonnenbergs had a different experience with DRE.
Mill View’s neglect of Sonnenberg was deemed a type A violation after all. For this DPH fined Mill View $1,598.40 The department also pursued the other type B and C violations that Kristopaitis had cited in her February 23 report, for the same activities but against other residents–unlicensed nurse technicians administering medications, taking physicians phone orders, giving treatment. The DPH system of notification, plan of correction, and inspection then followed. On March 4, Mill View submitted a plan of correction to be adhered to no later than March 15. On April 30, DPH workers found that the promised changes had not occurred, found an additional type B violation, and notified Mill View.
The home again promised to eliminate the violations by May 6 and June 15; again, DPH found that the home hadn’t, in inspections on May 7 and July 1. An inspection on August 20 also showed that Mill View continued its practices. For these violations, DPH fined Mill View $39,704 on July 1, 1981. The fines were for violations beginning February 23 (plus the B violation found April 30) and continued to increase each day after July 1, so long as the violations went uncorrected. The department also revoked Mill View’s license on June 15. Mill View, under DPH rules, could contest the fines and the license revocation, and did so, asking for a hearing. DPH scheduled a hearing ultimately for September 21. The Criminal Case Failure to correct type A or B violations (not type C) is a class A misdemeanor, and DPH may ask the state’s attorney to prosecute. Because Mill View repeatedly failed to correct the type B violations that Kristopaitis originally found on February 23, Cook County Assistant State’s Attorney Stuart Sikes, of the Nursing Home Division, representing DPH, filed criminal charges on August 11.
Mill View, having the option, chose to defend against the criminal charges first, receiving a judicial stay against all administrative proceedings until the criminal case was resolved. (Meanwhile Mill View Associates, owners of the home, sold it; the new home was called Spring Meadows and began operating under a temporary license September 30, 1981.) Against the criminal charges, Mill View mounted a constitutional defense; the home alleged that the Illinois Nursing Home Care Reform Act of 1979 the basis for the misdemeanor complaints?as well as DPH regulations were unconstitutional. Mill View said that the act denied the equal protection clause to the Fourteenth Amendment of the U.S. Constitution by exempting state-run homes from DPH scrutiny; the nursing home also said that DPH rules and regulations were unconstitutionally vague in that the same rules could be the basis for both civil and criminal actions. Associate Judge Kenneth J. Cohen of the Circuit Court of Cook County found for Mill View, holding that the Nursing Home Care Reform Act was unconstitutional, on April 23, 1982.
Subsequently, the Illinois Supreme Court on September 29, 1983 reversed the lower court and upheld the act and *Sikes said he considered bringing a charge of manslaughter but didn't for lack of evidence.
DPH rules in People v. Gurell, 98 111. 2d 194 (1984). The court rejected the defendants’ argument that the act jeopardized their right to carry on their business: “No case has been called to our attention in which the right to economic gain . . . has been held to be a fundamental right guaranteed by the Constitution.” Also, the court found a rational basis for exempting state facilities from the act and found no violation of the equal protection clause. “In our case the legislature chose to deal with the problems it perceived in the nursing-home industry one step at a time by regulating private facilities. . . . State-operated facilities are under the direct control of the State and . . . most of these facilities are regulated by statutes other than the one in question.”
The court also rejected the defendants’ notion that the civil-criminal possibilities in DPH rules were vague. Only civil penalties may be imposed for initial violations; after that, the violator has a right to a hearing. No criminal penalties may be imposed unless the defendant intentionally fails to correct type A or B violations within the time specified in the notice or the plan of correction. All of this took place over two years, during which the activities described in the rest of this report took place. In the end, Myron Gurell pleaded guilty to the criminal charges on May 4, 1984 in Cook County Circuit Court. The state dropped its charges against the other Mill View owners. Gurell was sentenced to one year’s criminal probation. For five years he is barred from serving as administrator or licensee of any Illinois nursing home.
Our discussion to this point has centered on DPH involvement in the Sonnenberg case: after some unfortunate lapses, a responsive and timely involvement. The focus of our report the role of the Department of Registration and Education follows. We have already mentioned that DPH asked DRE to investigate Donna’s physician at Mill View. In one of its many letters to the Sonnenbergs, DPH wrote: “You will be interested to know that in response to Director Kempiners’ request the Illinois Department of Registration and Education has assigned a medical investigator named Ms. Janet Walsh to investigate the conduct of Dr. Aren on this matter.” In the next chapter we will examine Walsh’s investigation including DRE’s findings about Donna Sonnenberg’s care at Mill View and the department’s dealings with the Sonnenbergs.