Elder Abuse | Nursing Home Abuse – An Overview
Nursing home abuse refers to the physical or emotional abuse of elderly and other vulnerable adults that take place in residential, long-term care facilities or nursing homes. It is also sometimes referred to as institutional elder abuse. The specific legal definition of nursing home abuse varies from state to state, but in most states it is considered a criminal offense and falls under the general heading of elder abuse. Other types of elder abuse are domestic abuse (abuse or neglect committed by a family member, friend, or caretaker) and self-neglect (in which an elderly person fails to care for him or herself).
Elder abuse in nursing homes is a growing problem in the United States. In 2001 the Special Investigations Division, Committee on Government Reform, U.S. House of Representatives, reported that almost one-third of nursing homes in the United States were cited for abuse violations over a two-year period. Elder abuse may be physical, sexual or due to neglect. Physical abuse includes situations in which a resident is kicked, beaten or otherwise physically mistreated. Sexual abuse most often occurs when a resident is fondled, subjected to sexual contact, or raped.
Laws to protect the elderly exist at the federal and state levels. Federal law provides definitions of elder abuse and creates funding for state and local training and awareness programs. Most laws pertaining to nursing home abuse, however, are state laws.
In 1987, Congress passed the Nursing Home Reform Act requiring each state to issue regulations to protect the rights of nursing home residents. The laws of every state vary, some provide more protection than others, and the burden for proving abuse or neglect also varies. It is important to check with an attorney with experience representing victims of elder abuse to determine the exact terms of the laws that apply in your state.
Federal law requires a nursing home to care for its residents in a way that promotes their quality of life (42 USC §1395i-3). The Administration on Aging adds that residents must be treated with respect and dignity. Rights of a nursing home resident under federal law include:
- Freedom from physical or chemical restraints imposed merely for discipline or the convenience of the nursing home (examples: vests‚ hand mitts‚ sedating medications);
- Freedom to voice grievances without retaliation‚ including filing complaints with the state nursing home certification authority;
- Management of one’s own finances;
- Association with individuals of one’s own choice;
- Privacy with regard to accommodations‚ medical treatment‚ written and telephone communications‚ visits‚ and meetings of family and of resident groups;
- Participation in resident groups in the facility‚ and in social‚ religious‚ and community activities;
- Confidential handling of personal and medical records‚ and access to these records;
- Receipt of information prior to admission about rights‚ available services and charges; and
- Advance notice of transfer or discharge‚ and protection against unfair eviction.
A doctor and the nursing home staff must provide a personal care plan for the nursing home resident. The nursing home must provide services for both prevention and treatment of illness‚ helping the resident to maintain as much independence as possible. Services include physical and occupational therapy‚ vision and hearing care‚ injections‚ colostomies‚and medication. A resident has the right to “receive services with reasonable accommodation of individual needs and preferences” (42 CFR §483.15(e)).
Various states have passed laws that implement these rights and add new ones with specific regulations related to licensing‚ service requirements‚ physical facility requirements‚ staffing requirements‚ and penalties for nursing home violations.
Many states have enacted laws providing civil remedies, but each state has different laws that may make it more difficult or easier to prove a cause of action and limit the time for filing a claim (statute of limitations).
For example, in California, the statute of limitations is two years. You must prove with “clear and convincing evidence” that the elderly person was harmed by abuse or neglect that involved recklessness, oppression, fraud or malice by the health care provider. Whereas in Arizona, the statute of limitations is seven years and the standard of proof is less stringent, requiring a “preponderance of evidence” which simply means “more probable than not”. Again, each state differs. It is critical that you seek legal counsel from an attorney with experience in elder abuse claims.
We have offices in San Francisco, Los Angeles, San Diego, San Jose and Sacramento, and provide legal representation throughout California including Redding, Fresno, Long Beach, Berkeley, Ontario and North Hollywood, CA.
ADULT PROTECTIVE SERVICES (APS)/INSTITUTIONAL ABUSE LAW
All fifty U.S. states have Adult Protective Services programs. APS responds to reports of abuse, researching claims and providing social services as necessary. In some states, APS is only available to victims of domestic abuse while in others it is also available to nursing home abuse victims.
If APS does not cover nursing homes, institutional abuse laws may fill the void. They serve an essentially analogous function but refer specifically to nursing homes and other residential care facilities.
In order to receive federal funding, states must have a Long-Term Care Ombudsman Program (LTCOP). Ombudsmen are responsible for investigating complaints against nursing homes. They may turn their findings over to APS, law enforcement, or other regulatory agencies.
NURSING HOME ABUSE AND CRIMINAL LAW
Although criminal laws pertaining to nursing home abuse vary from state to state, there has been an overall move toward making nursing home abuse a criminal offense. Even in states with less specific laws about nursing home abuse, general criminal laws, such as those dealing with rape and assault, apply.
WHAT SHOULD YOU DO IF YOU SUSPECT NURSING HOME ABUSE OR NEGLECT?
If you observe that your loved one is not being properly groomed, that he or she is incontinent and is left sitting in body waste for extended periods of time, that nursing home staff rarely enter the resident’s room, or any combination of the above conditions, you should begin by complaining to the charge nurse or nurse supervisor on duty at the time of the incident. Care may sometimes improve once family members begin to complain. However, don’t stop there. If you observe the same conditions again report your concerns to the Director of Nursing (also known as the DON), and the Administrator of the nursing facility. It is helpful during this period to begin to keep notes about what you have observed at the nursing home. If possible, keep notes regarding the specific complaints made, the dates those complaints were made, and to whom you complained. Often when a lawsuit is filed the first question from the defense standpoint is whether family members complained about the lack of care.
You may also want to report your findings to the Department of Public Health in your state. The Department of Public Health is responsible for inspecting nursing homes to ensure compliance with state and federal regulations. Nursing homes must be in substantial compliance with state and federal regulations or they can be denied Medicare and Medicaid payment for new admissions, civil monetary penalties can be assessed against the nursing home, a nursing home’s Medicare and Medicaid certificates can be revoked, residents may be transferred to other facilities, and temporary management can be imposed on the facility. It is unlikely that one complaint will result in any of the above penalties; however, your complaint will encourage the nursing facility to provide better care even if it is only out of fear of future complaints and/or possible surprise inspections by the Department of Public Health.
If the conditions in the nursing facility do not improve you may want to consider moving your loved one to another facility. However, the viability of this option will depend on several factors including the ability of the resident to withstand the move, the availability of other nursing facilities, the conditions at any alternative facilities, and the affordability of any alternative facilities.
In addition to reporting your concerns to the state agency in charge of ensuring compliance with state and federal regulations, you may consider pursuing criminal charges against the nursing home staff members responsible for the abuse or neglect. Many states have elder abuse laws that proscribe criminal penalties for the abuse or neglect of an elderly or disabled person by a caregiver.
Both federal and state law protects the elderly from abuse. If you believe an elderly person you care about is suffering from abuse, it is important to take protective measures. Contacting an attorney with experience in Elder Abuse Law is the most active protective step you can take. At the Blackman Legal Group we have years of experience enforcing the rights of the elderly. We understand the emotional devastation that families undergo when they learn their elderly loved ones have been victimized by elder abuse and we do our best to bring justice to elder abuse victims and their families. Contact Us Today!
CONTACT AN EXPERIENCED CALIFORNIA ELDER ABUSE LAWYER
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