Section 330.4295 Prohibition of Retaliatory Action Against Residents

TITLE 77: PUBLIC HEALTH

CHAPTER I: DEPARTMENT OF PUBLIC HEALTH

SUBCHAPTER d: LONG-TERM CARE FACILITIES

PART 330 SHELTERED CARE FACILITIES CODE

SECTION 330.4295 PROHIBITION OF RETALIATORY ACTION AGAINST RESIDENTS

Section 330.4295  Prohibition of Retaliatory Action

Against Residents

a)         For

the purposes of this Section

, "retaliatory action" means an action

that is taken in retaliation for a resident's involvement in one or more of the

protected activities described in

subsections (b)(1) through (8)

and

that interferes with a resident's quality of life at the facility or results in

either the imposition of selective restrictions or the resident's neglect or

reduced access to services

.  Section 2-120(a) of the Act)

b)

No

facility, licensee of a facility, or employee of a facility shall threaten to

take or take a retaliatory action against a resident because the resident does

any one or more of the following

:

1)

Complains,

discloses, or threatens to disclose, to a supervisor, a public body, including,

but not limited to, the Office of the State Long Term Care Ombudsman, or any

other person with regulatory authority, an activity, inaction, policy, or

practice implemented by a licensee or facility that the resident reasonably

believes violates

the Act or this Part, or any other

law, rule, or

regulation

;

2)

Provides

information to or testifies before a public body conducting an investigation,

hearing, or inquiry into a violation of

the Act or this Part, or any other

law,

rule, or regulation by an administrator of the facility

;

3)

Assists

or participates in a proceeding to enforce the provisions of

the

Act

or this Part

, including a grievance procedure under Section 2-112

of the

Act and Section 330.4310;

4)

Seeks

assistance for the resident to transition to independent living or another

setting outside of the resident's current facility

;

5)

Makes

a request of the facility related to the resident's care

;

6)

Becomes

a member of a residents' advisory council as described in Section 2-20

the

Act

or this Part

, including a grievance procedure under Section 2-112

of the

Act and Section 330.4310;

4)

Seeks

assistance for the resident to transition to independent living or another

setting outside of the resident's current facility

;

5)

Makes

a request of the facility related to the resident's care

;

6)

Becomes

a member of a residents' advisory council as described in Section 2-203

of

the Act and Section 330.740,

a resident union, or a similar organization

;

7)

Engages

in activity protected in Section 3-608

of the Act and Section 330.4290;

or

8)

Takes

any other good faith action in support of any other right or remedy provided by

law

.  (Section 2-120(b)(1) through (8) of the Act)

c)

A

resident who alleges a violation of

subsection (b)

by a facility, the

licensee of a facility, or an employee of a facility may bring a civil action

for damages against the facility, the licensee who is responsible for the

facility, or both, within two years after the date of the last violation of

subsection (b)

that is alleged in the resident's complaint. A violation of

subsection

(b)

may be established upon a finding that

:

1)

The

facility, the licensee of the facility, or the employee of the facility engaged

in conduct described in

subsection (b);

and

2)

This

conduct was a contributing factor in the retaliatory action alleged by the

resident

.  (Section 2-120(c) of the Act)

d)

For

each claimed violation of

subsection (b)

by a facility, a licensee of a

facility, or an employee of a facility, the facility, the licensee who is

responsible for the facility, or both may also be liable to the resident for

additional damages in an amount equal to the average monthly billing rate for

Medicaid recipients in the facility

.  (Section 2-120(d) of the Act)

e)

A

copy of any complaint filed under

Section 2-120 of the Act and this Section

shall be filed with the Department

by the facility

ility, the facility, the licensee who is

responsible for the facility, or both may also be liable to the resident for

additional damages in an amount equal to the average monthly billing rate for

Medicaid recipients in the facility

.  (Section 2-120(d) of the Act)

e)

A

copy of any complaint filed under

Section 2-120 of the Act and this Section

shall be filed with the Department

by the facility.  (Section 2-120(e)

of the Act)

f)

To

ensure compliance with the requirements of

the Act and this Section

,

each licensee shall annually provide to the residents of its facility and their

next of kin, a document containing a description of the retaliation complaint

procedures and remedies established under

the

Act

and this Part.

The

licensee shall file this document in the resident's document file

.

This

document shall also be made available to the resident, the resident's representative,

the Department, or the Office of the State Long Term Care Ombudsman upon

request

.  (Section 2-120(f) of the Act)