Nursing Home Lawyer & Attorney : Stark & Stark Law Firm : Elder Care, Senior Care

Below is a general overview of nursing homes' responsibility to abide by federal and state law.  Nursing homes that receive medicaid and or medicare are required to comply with federal legislation. Federal legislation calls for a high quality of care. All states must comply with the federal regulations and some states have adopted even tougher laws.

In 1987, Congress enacted legislation requiring nursing homes participating in the Medicare and Medicaid programs to comply with certain requirements for quality of care. This law is included in the Omnibus Budget Reconciliation Act of 1987 (OBRA 1987), also known as the Nursing Home Reform Act. According to OBRA, a nursing home "must provide services and activities to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident in accordance with a written plan of care..."

To participate in the Medicare and Medicaid programs, nursing homes must also be in compliance with the federal requirements for long term care facilities as prescribed in the U.S. Code of Federal Regulations (42 CFR Part 483).

Below is a list of some regulations with which the nursing home must comply:

• Sufficient nursing staff to meet the needs of the residents. (42 CFR §483.30)
• Conduct comprehensive and accurate assessments of each resident's functional capacity. (42 CFR §483.20)
• Develop a comprehensive care plan for each resident. (42 CFR §483.20)
• Prevent the deterioration of a resident's activities of daily living (the ability to bathe, dress, groom, transfer and ambulate, toilet, eat) (42 CFR §483.25)
• Provide activities of daily living such at toileting, grooming, feeding and person hygiene if a resident assessment determines . (42 CFR §483.25)
• Ensure that residents receive proper treatment and assistive devices to maintain vision and hearing abilities. (42 CFR §483.25)
• Ensure that residents do not develop pressure sores and, if a resident has pressure sores, provide the necessary treatment and services to promote healing, prevent infection, and prevent new sores from developing. (42 CFR §483.25)
• Provide appropriate treatment and services to incontinent residents to restore as much normal bladder functioning as possible. (42 CFR §483.25)
• Ensure that the resident receives adequate supervision and assistive devices to prevent accidents. (42 CFR §483.25)
• Maintain acceptable parameters of nutritional status. (42 CFR §483.25)
• Provide each resident with sufficient fluid intake to maintain proper hydration and health. (42 CFR §483.25)
• Ensure that residents are free of any significant medication errors. (42 CFR §483.25)
• Maintain dignity and respect of each resident. (42 CFR §483.15)
• Ensure that the resident has the right to choose activities, schedules, and health care. (42 CFR §483.40)
• Provide pharmaceutical services to meet the needs of each resident. (42 CFR §483.60)
• Be administered in a manner that enables it [the nursing home] to use its resources effectively and efficiently. (42 CFR §483.75)
• Maintain accurate, complete, and easily accessible clinical records on each resident . (42 CFR §483.75)

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A major concern with both nursing homes and assisted living facilities (ALF) is short staffing. In our practice, we routinely find the plaintiff’s injuries are directly related to inadequate staffing. If you have a loved one who is in a nursing home or ALF and are concerned about the staffing speak with the facilities administrator and/or a social worker. If you are unsuccessful contact the Ombudsman’s Office (this is an independent state-run office who advocate for the rights of elderly residents).

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N.J.S.A. 30:13-5 is commonly referred to as the Resident’s Bill of Rights. Below I have provided an abbreviated version of those rights. The purpose of this is to give you an idea of what type of rights a nursing home resident is entitled to. However, it is advised that you review this statute in its entirety and/or speak to an attorney about the statute.

Every resident in a New Jersey nursing home shall:

(1) Have the right to manage his own financial affairs;

(2) Have the right to wear his own clothing and right to retain and use his personal property;

(3) Have the right to receive and send unopened correspondence;

(4) Have the right to unaccompanied access to a telephone and the right to privacy;

(5) Have the right to retain the services of his own personal physician;

(6) Have the right to unrestricted communication, including personal visitation with any persons of his choice at any reasonable hour;

(7) Have the right to prevent grievances on behalf of himself or others at the nursing home;

(8) Have the right to a safe and decent living environment and considerate and respectful care that recognized their dignity and the individuality of the resident. This includes the right to expect and receive appropriate assessments, management and treatment of pain as an integral component of that person’s care consistent with sound nursing and medical practices;

(9) Have the right to refuse to perform services for the nursing home that are not included in therapeutic purposes of his/her plan of care;

(10) Have the right to a reasonable opportunity for interaction with members of the opposite sex;

(11) Not be deprived of constitutional, civil or legal rights solely by reason of admission to the nursing home.

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As a general rule, the caring staff of nursing homes and assisted living facilities (ALF) provides compassionate care with the best of intentions. However, it is equally important to have administrative processes to not only provide that care, but also to recognize and respect the wishes of nursing home residents. A recent lawsuit in New Jersey reflect against Sunrise of Westfield Assisted Living Center in Westfield, New Jersey involves the allegation that an assisted living facility administered CPR and revived its resident, despite the fact that a living will and do not resuscitate order were allegedly filed with the facility. The case contains the allegation that the resident survived another eighteen months and suffered the “horrific” and “progressive” final stages of Alzheimer’s Disease and thus resulted in suffering which was not only unneeded, but directly against the wishes of the resident. Although the facility denies liability, it was cited by the New Jersey Department of Health and Senior Services for reviving the resident against her expressed wishes.

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In the year 2005, the Department of Health and Senior Services awarded approximately 136 million dollars to whistleblowers across the United States. In cases filed under an area of law known as qui tam lawsuits, the federal government aggressively pursued both healthcare and non-healthcare providers who were accepting federal funds, but fraudulently billing them. Employees and private citizens with enough courage to do so, reported these improper actions to the federal government, allowing the Department of Justice to right a significant number of wrongs and recoup money that had been wrongfully taken from them. A beneficial byproduct of this area of litigation involved a number of CRIPA claims against nursing homes, centers for developmental disabilities and other institutions which provides healthcare services to our most vulnerable citizens. In a number of these cases, including two which I personally worked on, lawsuits and settlements directly resulted from the cooperation of families, attorneys and other concerned individuals. For more information on these claims and to learn where you can report mistreatment or fraud, feel free to visit the Department of Justice website.

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Poor work conditions represents one of the most significant hurdles facing nursing home residents today. Workers who lack job satisfaction and who feel a sense that the management company is not providing them the support they need simply cannot deliver the level of care that our elderly deserve. When conditions reach a critical level, workers will literally leave the job. This happened as recently as August of this year at a Veterans home in Menlo Park, New Jersey. A union representative noted “people don’t want to come to work anymore, it’s so bad…we just want to be able to do our job in peace.” One worker claimed that she was on suspension for utilizing six work days, even though her contract authorized fifteen sick days. This represents a classic example of management failing to protect nursing home residents through fair and equitable treatment of its own employees.

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Some nursing homes are simply motivated by profit. The more residents the nursing home has in beds the more revenue is generated. This causes some administrators and case managers to engage in rather shameful behavior. For example, after forty-four years of long-term care facility, Country Manor in Dover Township recently closed its doors. Once word was out that Country Manor was closing, the facility was inundated with telephone calls by administrators, case managers and social workers of other facilities interested in taking their residents. Some of those persons arrived at the facility uninvited and began soliciting residents. Others called asking for a list of public guardians. Another administrator reputedly called requesting access to residents to distribute brochures. When told this would not be permitted, he simply walked in the front door and began handing out brochures. The entire process became very stressful for many of the residents, many of whom weren’t able to understand what was occurring at Country Manor and where they are going. Apparently none of these professionals showed any compassion or concern for the residents. Their only objective appeared to be filling beds in their own facilities. When choosing a nursing home, always keep a vigilant eye out for those who appear to be putting a higher priority on profit than on the individual residents.

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In keeping with concerns over worker and patient/resident safety, workers had picketed an Edison, New Jersey nursing home, complaining that they often would work sixteen hour shifts, seven days a week at the facility. There can be no question but that these type of working conditions, in the end, endanger the safety and welfare of nursing home residents.

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Nursing Home Workers' Unions and their representatives provide some of the best assurances that nursing home residents will receive the care that they need. All too often exceedingly low pay and difficult working conditions lead to low morale for caregivers who otherwise have the best of intentions in providing quality care to nursing home residents. Alarmingly, many nursing homes throughout New Jersey and the rest of the country face work slowdowns, strikes and other complaints from union members that the nursing home owners and management simply aren’t providing workers with the tools they need and compensation they deserve for this very challenging job. In Indiana, the National Labor Relations Board issued a complaint against a local nursing home for its failure to even allow union representatives to meet with their members at the nursing home. This type of conduct is unacceptable and, in the end, greatly interferes with the ability of caregivers to provide nursing home residents with the level of dignity, comfort and growth that they deserve. Of the 250 owned by the corporate organization which ran this particular nursing home, at the time of the reporting, only five had been unionized.

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The National Citizens’ Coalition for Nursing Home Reform (NCCNHR) is a consumer rights group interested in protecting the rights, safety and dignity of America’s long term care residents. Their goal is to achieve quality for residents of long term care facilities. They mean to accomplish this goal via:

1. Informed, empowered consumers;

2. Effective citizen groups and Ombudsman programs;

3. Promoting best practices in care delivery;

4. Public policy responsive to consumer needs; and

5. Enforcement of standards.

For more information about NCCNHR, contact them online or telephone them at 202-332-2275.

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Protecting the rights, safety and dignity of your loved one who is about to enter or who has been living in a nursing home is not always easily done. Publications exist that can benefit you greatly in understanding precisely what rights, safety and dignity issues exist at nursing homes. The following is a list of books and videos that can help answer many questions.

1. Nursing Homes: Getting Good Care There
Second Edition
Author: Sarah Greene Burger, Barbara Frank, Virginia Fraser and Sara Hunt

2. Nursing Home Staffing: A Guide for Residents, Families, Friends and Caregivers
Author: Sarah Greene Burger

3. Strength in Numbers: The Importance of Family Councils in Nursing Homes
Video developed by National Citizens’ Coalition for Nursing Home Reform
(NCCNHR)

4. 24/7: Residents’ Rights Around the Clock
Residents’ Rights Packet 2003
Developed by Julie Meashey, MAG

5. Giving Voice to Quality: Affirming Residents’ Rights in Long Term Care
Residents’ Rights Packet 2002
Developed by Julie Meashey, MAG

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If you are contemplating action against the nursing home for neglect or abuse, it is important that you do not delay in contacting an attorney. Under New Jersey law you would have two years from the date of the alleged neglect or abuse to bring an action. However, these cases often show patterns of neglect and abuse that date back well before any family or friends see evidence of it. In order to make certain that the nursing home is held accountable for all incidents of neglect and abuse, an action should be filed sooner rather than later.

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