MLG Legal Clips

A collection of cases, laws, and noteworthy events that we at Monahan Law Group, LLC think you should be aware of. Should you have any questions or seek further information, please do not hesitate to contact us.

Reporting Adverse Health Care Event

The Illinois Department of Public Health amended its regulations to expand the list of medical events that must be reported under the Illinois Adverse Health Care Events Reporting Law of 2005. The amendment aligns Illinois regulations with the standards promulgated by the National Quality Forum. Of particular note, included in the expanded list are the following events:

- the discharge of a patient of any age lacking decisional capacity to someone other than the person's guardian or other legally authorized person,

- and the death or serious injury associated with the disappearance of a patient for any length of time.


Mental Health Code, Involuntary Admission, Foreign Nationals

In re Miroslava P ., 2016 IL App (2d) 141022 (March 30, 2016).

Petitions were filed for involuntary admission and involuntary administration of psychotropic medication against the respondent, a Bulgarian citizen. Respondent repeatedly requested the health care facility and the court to notify the Bulgarian consulate of the admission and medication petitions. The initial requests were refused, and while the facility did notify the consulate several weeks later, the cursory notification did not include the admission petition.

The appellate court reversed the involuntary admission and involuntary administration of medication orders in light of noncompliance with Section 3-609 of the Mental Health and Developmental Disabilities Code. It was reasonable for the court to hold noncompliance inexcusable, regardless of prejudice to the respondent.

The rather novel aspect of a foreign national notwithstanding, the case is noteworthy for its discussion of the "two other persons" notification provision of section 3-609:

¶ 44 Accordingly, we agree with the trial court's determination that, pursuant to section 3-609, a respondent who is a foreign national may designate her locally stationed consul as one of her two "other persons" who must receive copies of the admission petition. To be clear, section 3-609 does not require providing a foreign consulate with the petition in every mental-health case. Rather, section 3-609 requires providing the foreign consulate with the petition if the respondent chooses the consulate as one of two or fewer designated persons. Also, this provision concerning "other" designated persons is separate from the preceding portion of section 3-609, which separately mandates that the respondent's attorney and guardian receive the petition.

¶ 55 ...This provision protects the rights of a respondent in that it gives him or her a greater voice in the proceedings and allows him or her to reach out to potential advocates. This provision is not purely ministerial and is no less important than contacting an attorney in a collateral proceeding or specifying by name the licensed professionals who may dispense a respondent's medication.

No other published case has discussed a violation of Section 3-609 in regard to the designation of "other persons." This case is another example of how facilities must follow the procedural requirements of the Mental Health Code.


IL Medicaid - Provision of Services

In the recently decided case O.B. v. Norwood, 2016 WL 1086535 (N.D. Ill. Mar. 21, 2016), a federal judge ordered the state of Illinois to provide community-based nursing care to children with severe disabilities and medical conditions. The Illinois Department of Healthcare and Family Services has approved over 1,200 children for in-home nursing services based on their high level of medical need for assistance with routine bodily functions, such as eating, drinking, breathing, and oxygen regulation. Yet, Illinois has failed to arrange for the in-home nursing it had previously approved, due to budget constraints. The result is unnecessary and costly institutionalization, heightened risk of medical complications, and diminished quality of life.

"Federal Medicaid law requires states to ensure that enrolled children receive all covered services that they need to address their disabilities and illnesses," said Jane Perkins, legal director, National Health Law Program, and one of the attorneys for the plaintiffs. "The court's well-reasoned decision supporting the order stands for the unremarkable proposition that a state Medicaid agency must make sure that child beneficiaries actually receive the services the agency has determined are medically necessary."

The problem, familiar to Illinoisans, is funding.


Involuntary Administration of Medication

In re Sharon H., 2016 IL App (3d) 140980 (April 15, 2016).

After a hearing, the circuit court granted petitions for involuntary admission and involuntary administration of medication. On appeal, respondent claimed the evidence was insufficient to establish she was subject to either involuntary admission or involuntary administration of medication. Respondent further claimed a failure to comply with the statutory provisions regarding involuntary medication, and that her trial counsel was ineffective.

The appeals court dismissed the first two claims as moot since sufficiency of the evidence claims do not meet an exception to the mootness doctrine. The court further held respondent's remaining claims satisfy the public interest exception to the mootness doctrine and, in regard to effectiveness of counsel, respondent failed to show the prejudice necessary to establish ineffective assistance of counsel at the admission hearing.

However, the order for administration of medication violated section 2-107.1(a-5)(4)(G) of the Mental Health and Developmental Disabilities Code by failing to specify what testing it was requiring to be conducted on the respondent. The petition requested the following:

"Lab Testing & Imaging & procedures required for management and for transfer to the State hospital."

The appeals court held this language too non-specific and, coupled with the lack of testimonial evidence presented at the medication hearing regarding testing, was a violation of the Code. Further, respondent did not receive the notice required by the Code, as the medication petition was not served on her at least 3 days prior to the hearing. Thus, the court order to involuntarily administer medication is reversed.


HIPAA Violation

The Department of Health and Human Services, Office for Civil Rights (OCR) recently announced a $2.2 million settlement with New York Presbyterian Hospital (NYP) for the disclosure of protected health information (PHI) to film crews and staff during the filming of "NY Med," an ABC television series, without first obtaining authorization from the patients.

NYP allowed the ABC crew to film someone who was dying and another person in significant distress, even after a medical professional urged the crew to stop.

According to OCR, NYP's actions blatantly violated the HIPAA Rules, which were specifically designed to prohibit the disclosure of individual's PHI, including images, in circumstances such as these.

OCR also found that NYP failed to safeguard PHI and allowed ABC film crews virtually unfettered access to its health care facility, effectively creating an environment where PHI could not be protected from impermissible disclosure. In addition to the monetary penalty, OCR will monitor NYP for two years as part of a Resolution Agreement and Corrective Action Plan.