May 5, 2020

Skilled nursing facilities and certain other providers that take Medicare or Medicaid may still issue Involuntary Transfer or Discharge Notices (ITDs) to residents who have failed to pay for their care, despite an Executive Order issued by Illinois Governor J.B. Pritzker on May 1, 2020.

Section 14 of Pritzker's Executive Order 2020-33 states that as a result of the COVID-19 pandemic, the sections of the Nursing Home Care Act, the MC/DD Act, and the ID/DD Act permitting such facilities to "initiate an Involuntary Transfer or Discharge of a resident for late payment or non-payment" are "suspended."

But remember that if any such facilities are Medicare or Medicaid certified, then they must initiate such ITDs under federal regulations promulgated by Centers for Medicare & Medicaid Services (CMS), not under the state statutes cited in Section 14 of the Executive Order. As a result, in our view, the Executive Order therefore does not prohibit such facilities from either issuing such ITD notices under the federal non-payment rule, or from moving forward with such transfers.

Note that Section 14 does not mention assisted living facilities (ALFs) or specialized mental health rehabilitation facilities (SMHRFs). In our view, this omission of ALFs and SMHRFs from Section 14 means that such facilities may continue issuing ITDs to residents who have not paid, and may proceed with the transfer process as usual, in keeping with applicable Illinois Department of Public Health (IDPH) regulations.

The Executive Order also suspends many IDPH license renewal requirements for nursing homes, ALFs, and SMHRFs, extending their state licenses for the period of Gubernatorial Emergency Proclamations.

Providers should note that the Executive Order does not prohibit a facility from transferring or discharging a resident for reasons other than nonpayment, such as inability to meet the resident's needs or safety.

Lastly, providers should note the Executive Order states that pending another Executive Order, during the COVID-19 pandemic, IDPH will only conduct surveys regarding complaints of abuse or neglect allegations within the statutory timeframes. Presumably, all other complaints will wait until the pandemic is over. CMS may still conduct infection control surveys.

If you have questions about Executive Order 2020-33 or are facing other challenges related to COVID-19, please reach out to your Much attorney.

This article contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under applicable rules of professional conduct, this content may be regarded as attorney advertising.