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November 2, 1999
United States Supreme Court to Hear Illinois Council Case Regarding Nursing Home Survey and Enforcement System
(Chicago) -- The United States Supreme
Court has agreed to decide whether nursing homes have
the right to challenge the constitutionality of Medicare
regulations in federal court or whether they must first
funnel their challenges through a lengthy administrative
appeals process. Oral argument before the U.S. Supreme
Court will take place on Monday, November 8, 1999. The
law firm of Winston and Strawn represents the Illinois
Council.
The case, entitled Shalala,
et al. v. Illinois Council on Long Term Care, Inc.
is a government appeal of a unanimous decision by a
panel of the Seventh Circuit Court of Appeals, which
ruled that nursing homes do have the right to bring
constitutional challenges to federal Medicare regulations
in federal court without first pursuing an administrative
appeal.
The Illinois Council on Long Term
Care, a healthcare association representing over 200
long term care facilities serving 35,000 residents,
originally filed a complaint that challenged as unconstitutional
a set of 1995 enforcement regulations used by the Health
Care Financing Administration to determine compliance
with Medicare and Medicaid “Requirements of Participation.”
A nursing facility found out of compliance
with the “Requirements of Participation” is
immediately subject to a variety of administrative penalties,
including cancellation of its Medicare or Medicare provider
agreements.
The Illinois Council notes that before
the 1995 regulations went into effect, 6% of Illinois
nursing homes were found out of compliance and considered
to provide poor care. After the 1995 regulations went
into effect nearly 70% of nursing homes in Illinois
were found deficient and defined as poor care facilities.
Overnight, the government arbitrarily redefined most
nursing homes as poor care facilities subject to penalties.
If the Supreme Court affirms the
Seventh Court decision, Illinois providers will have
the opportunity to challenge whether the way the new
federal survey and enforcement process is conducted
is constitutional.
At the heart of this Supreme Court
case is the lack of due process in the federal nursing
home enforcement system. The administrative process
for examining nursing home appeals can take up to two
years under the current system. However, a nursing home
that is found, correctly or incorrectly, to provide
substandard care can be closed within six months, long
before the facility’s administrative appeals process
has been completed.
“This is an issue of fairness,
not care,” states Terry Sullivan, executive director
of the Illinois Council on Long Term Care. “Quality
care still must be provided, regardless of the results
of a bureaucratic penalty process. If a surveyor misses
or overlooks an essential part of the care being delivered
in a nursing home, it is very difficult for a nursing
home to get an impartial hearing to tell both sides
of the story before the home is closed or subject to
tens of thousands of dollars in fines.
“Right now, the enforcement
system is one-sided, heavy handed, and stacked by the
government,” Mr. Sullivan adds. “A person
in traffic court has more rights to tell his side of
the story before a judge than a nursing home. It’s
not a question of care; it’s a question of fairness.”
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