Statutory Protection of Nursing Home Residents - Burke Harvey, LLC | Injury & Accident Lawyers in Birmingham, Alabama
Some signs of nursing home neglect may include: unexplained bruises or other relatively minor injuries, depression, withdrawal, weight loss, poor hygiene and general lack of cleanliness in the facility. More important, in cases of neglect or abuse, nursing home staff and administrators are often evasive when questioned. If you need to know the truth, an experienced attorney can help. Contact us.
The abuse of nursing home residents has come to the attention of the public in the past few decades. The frequency of abuse was shocking not only to the public, but to lawmakers as well. Some of the abuse brought to light included: physical abuse, deprivation of food, water or medical care and residents being taken advantage of financially. When the widespread nature of this abuse and neglect became known, state and federal legislatures enacted laws to protect elderly persons and other nursing home residents.
There are now federal and state laws to protect residents against abuse, neglect and exploitation. The states may apply these protections differently, but the basic protections are the same. For example, most states have a system of adult protective services for investigating and remedying reported abuse. Generally, abuse or neglect is considered a criminal offense and there is often a civil cause of action for abuse, neglect or exploitation of nursing home residents. Some states also have consumer protection statutes that may provide a statutory duty of care for residents of a nursing or care facility. If you are a nursing home resident who has been mistreated, or if you care about such an individual, do not hesitate to contact an experienced elder law attorney at Burke Harvey, LLC in Birmingham, Alabama, to pursue appropriate legal redress.
Federal Protective Statutes
Most states have enacted protection statutes as the result of federal statutes protecting residents of nursing and care facilities. Among federal protection statutes are Title XX of the Social Security Act, the Long-Term Care Ombudsman Program, the Older Americans Act and the Nursing Home Reform Act.
Title XX of the Social Security Act compels states to fund protective services for adults. Adult protective Services (APS) were created to protect nursing home residents from abuse, neglect and exploitation by facility staff members or other individuals. By creating APS, states are in compliance with Title XX and able to receive federal funding for state run care facilities. Title XX also lead to Congress directing all states to establish a Long-Term Care Ombudsman program in 1978. The Long-Term Care program provides individuals in nursing or care facilities with protection against neglect and abuse. Likewise, The Older Americans Act creates federal programs designed to identify, prevent and address elder or nursing home resident abuse. As discussed earlier, The Nursing Home Reform Act sets standards for Medicare and Medicaid funded long-term care facilities. Some of the standards include, employee, credentials and licensing requirements, individualized care plans and basic resident rights. The standards set forth in federal law were enacted by the states, although some states differ in application. Even with differing interpretation of federal law, state statutes have the same basic protections against abuse, neglect or exploitation against nursing home residents.
Abuse of individuals may be physical or emotional. Although specific state definitions may vary, abuse is generally defined as actions that cause emotional or psychological injury or distress. Actions may be hitting, pushing, verbally insulting a resident, causing emotional pain or fear, or in some states, isolation or unreasonable confinement or restraint. The types of abuse and causes of such abuse differs. The courts may look to the affect of such actions to determine whether a resident was abused in violation of state law.
Most states define neglect as the failure to provide a nursing home or long-term care resident with basic services necessary for health and safety. These services include food, shelter, clothing, supervision and medical care. Deprivation of these basic necessities may harm individuals as much as if they were physically or intentionally harmed. Although such harm may be unintentional or careless, failure to provide basic services may endanger the health and safety of residents and is neglect.
Exploitation may be financial or non-financial. Many states define exploitation as the wrongful use of an individual’s finances, property or person for another’s advantage. Generally, a residents personal or financial resources are taken from them without their consent, through undue influence, duress, threats, intimidation, deception or because the individual is incapacitated or unable to give consent.
State Protective Statutes
States have enacted protection statutes as a result of federal statutes protecting care facility residents from mistreatment. Mistreatment may be in the forms of abuse, neglect or exploitation. Abuse is typically thought of as physical, but also includes emotional maltreatment. Emotional abuse can cause psychological injury in the abused individual. Abuse or neglect may also be shown by unreasonable confinement of a resident, including unnecessary use of restraints, and deprivation of necessities. Exploitation may also be physical or financial in nature. Examples of physical exploitation are sexual exploitation, threats, intimidation and the inability to give informed consent due to threats and/or intimidation. Financial exploitation includes money or property that is taken from an individual without his or her consent.
Most state statutes provide a civil cause of action for elder or nursing home resident abuse. Victims of criminal negligence by a staff member may pursue a civil remedy of negligence per se against the staff member. To establish negligence per se, four elements must be proven. First, a duty must exist between the resident and the staff member or care facility, this duty is generally by contract. The contract should include minimum standards, which nursing home facilities should abide by as mandated by state and federal law. Second, the injured individual, or loved one of that individual, must prove that the duty was breached by the staff member or care facility. Third, the injured party must demonstrate that the defendant’s conduct proximately caused his or her injury. Lastly, the injury sustained by the plaintiff must exist as a result of the defendant’s conduct.
Consumer Protection Statutes
Nursing home facilities owe residents a duty of care via state statutes, federal statutes, contract and at common law. Some states consumer protection statutes may provide relief from a violation of this duty of care. Failure to provide proper care and treatment by a care facility is a violation of care, which arises from the nursing home owing a resident a standard of care generally given by similar facilities in the same area. This general standard of care is the level of care considered reasonable for the patient’s mental and physical circumstances and should keep them from unreasonable risk and harm. Likewise, a care facility may have a professional standard of care due to the resident. Nursing home or long-term care facilities/homes must use a degree of care, skill and standard of practice that are used by similar professionals and facilities in the community.
In addition to consumer protection at common law, there may be a state specific standard of care, in which the facility must abide. Many states have statutes that contain a standard of care a nursing home or long-term care facility must meet for their residents. Some states also require those standards to be contractual and included in patient contracts with the facility. These contractual rights may be known as “patient rights” or “patients bill of rights,” in some jurisdictions.
If you or a loved one in a nursing home has been neglected, abused or financially exploited, it is likely that there is a state statute designed specifically to remedy the situation. Do not hesitate to contact an attorney at Burke Harvey, LLC in Birmingham, Alabama to discuss initiating an investigation with your state’s adult protective services and, possibly, a civil lawsuit.
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