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Knowing resident's rights can help resolve care issues at nursing homes
By Mark A. Tate
For Coastal Senior
The population of the United States is aging and as this trend continues, more people than ever will be entering into assisted care facilities.
As the nursing home industry becomes more saturated with aging residents, these residents and their family members must become more vigilant of the rights nursing home residents possess as well as the duties and responsibilities assisted care facilities owe to their residents.
The effect of abuse and neglect of the elderly in assisted care facilities can be horrific. Issues ranging from lack of appropriate wound care to over medication and refusal to provide medical care can be dealt with first by gaining a clear understanding of the rights of nursing home residents and aggressively pursuing redress when these rights are violated.
Every nursing home resident and every family member should become aware of the basic in human civil liberties guaranteed nursing home residents.
Nursing home staff tend to focus on routine and efficiency. Of course, they must care for large numbers of frail, dependent people. Unfortunately, as a result, respect for the rights of individual residents sometimes gets lost in the drive to operate efficiently as a profit oriented business.
First, both residents and their families should receive a copy of the nursing home's policy on residents' rights upon their admission to the facility. However, the only way to assure and guarantee a resident's rights is to actively exercise them.
In order to preserve your nursing home rights, you should immediately demand a meeting with the facility director to address any and all violations and concerns.
In preparation for a meeting to discuss a problem, it is important to think about the result you are seeking. In addition, you should take some time to consider the following issues.
l Are there other people with the same concerns? You may not be able to speak for other families, but if you are having a problems, others likely have similar concerns.
l Have you personally observed the problem? Have you recorded the times and dates when it occurred? Have you recorded the attempts you have made to get the problem solved? Times, dates, and person you spoke to? Can you state the problems objectively, focusing on the effect and outcome for the resident? Simply talking about what "they" did or didn't do will only put staff on the defensive.
l Will the people who can solve the problem be at the conference? Try to ensure that the individuals who are in a position to solve the problem will be present, and that enough time has been allotted to sufficiently discuss the problem.
In addition to adequate preparation for your meeting, you must remain vigilant during your meeting and strive to induce a desire to work for the best interest of the nursing home resident. To that end, during the meeting:
- Establish a sense of cooperation and inclusion. Assume that staff do value satisfied customers and thus will want to know about, and fix, the problem.
- Hear staff out, but don't lose sight of your goal: the resident's well-being. Even with your best communication style, staff are likely to put up their guard. The administrator may blame aides who call in sick, regulations that entail too much time-consuming paperwork, or reimbursement rates that are too low. Remember: these circumstances are their management problem, not yours. Your role is to advocate for good care for the resident.
- Offer solutions about the problem's cause and its solution. If your family member has a particularly agitated reaction to an event, explore what may have caused the response. Ask staff whether they have tried to anticipate what provokes these symptoms. For example, people with diminished mental capacity often refuse to shower because they greatly fear what, to them, seems like an unknown and dangerous experience.
- Don't leave the meeting without a clear understanding of what you can expect. Know what you should do if the problem continues. Also be confident that staff know how you would like the problem handled. It's a particularly good idea to follow up the meeting with a note of thanks, reviewing the problem and summarizing how the nursing home has agreed to handle it.
How to submit a complaint
There are several organizations that are equipped to help with complaints about the quality of care in a nursing home. Most will take your complaint by phone, but it is preferable to put it in writing. To submit a complaint:
- Be as specific as possible regarding your concerns. See if you can answer the who, what, where, when and why questions in your letter to them. The timing of their response is usually based on the severity of the complaint.
- Include any relevant documents and the names of other persons who may be contacted.
- State that you would like a copy of the report sent to you.
When the meeting fails to resolve the problem:
- Inside the Nursing Home Resident and Family Councils. Many nursing homes have active resident councils, made up of residents and representatives, which gather regularly and may make recommendations concerning the facility's policies. A council can provide a strong, unified voice for residents' concerns and opinions about their living conditions. For certain problems, such as those relating to food and meal service, the resident council can prove particularly effective.
Many nursing homes have organized some type of family or community council. Depending on their structure and format, these groups can provide effective forums for discussing and following through on concerns that effect many residents in the facility. Some family groups mainly provide support and information; other actively advocate for changes in care.
- The Ombudsman Program. The ombudsman is a consumer advocate responsible for investigating and attempting to resolve complaints made by, or on behalf of, residents of long-term care facilities.
Start by identifying the ombudsman for your facility. Usually, there will be a sign with the ombudsman's name and phone number posted in the facility. If you can't locate it, ask the nursing home's director of social services for the information. Or, contact your state long-term care ombudsman. The state ombudsman will identify the right person to contact.
Once you have located the facility's ombudsman, explain the problem, telling her who you have contacted and what you have done. The ombudsman will consider your information confidential, unless you and the resident give her permission to speak to others on the resident's behalf. The ombudsman will want to talk to the resident personally and conduct a separate investigation. When this is completed, the ombudsman will work with you and the resident to develop the best course of action.
While the ombudsman program attempts to solve problems at their origin, the program depends on regulatory agencies to step in when necessary. The ombudsman program and most regulatory agencies will, on the request of a resident or family member, attempt to solve a problem without identifying the resident. For example, in a case where the problem is widespread, such as cold food, it is easy to protect the resident's identity. But in a case relating to an individual problem, it is often impossible to avoid disclosing the resident's name. It is important to remember that any form of retaliation against a resident who brought a complaint is illegal.
- State Licensing and Certification Offices. Federal and state government regulate nursing home care. The federal government established standards of care for nursing homes to meet in order to receive Medicaid and Medicare payments. State governments work in partnership with federal Medicaid programs and oversee nursing home care through their role as protectors of the public interest.
The licensing and certification office is generally housed in the state health department. This office is responsible for handling complaints. It also inspects nursing homes on a regular basis to ensure they meet standards. Yearly surveys identify deficiencies in areas like residents' rights, quality of life, quality of care, activities, social services, environment, safety. If deficiencies are found, the facility is responsible for correcting them. Licensing and certification officials can take numerous enforcement actions to sanction facilities that do not meet standards. These include a ban on admissions, civil fines or close monitoring.
- Regulatory Agencies. If your concern involves the action of the administrator, a nurse, a physician, a therapist, or a nursing assistant, you may with to make a report to the board which licenses or certifies that individual. You can get information regarding the procedures or addresses from your local or state Ombudsman Program.
- Resources for Reporting Neglect or Abuse. The definition of abuse generally covers a broad range of actions and practices involving the infliction of physical or mental injury: striking, slapping, shoving, shaking, menacing, harassing, inappropriate use of restraints, nonconsensual sexual conduct, Financial exploitation and neglect are other forms of abuse. State laws vary as to how, and where, abuse must be reported.
Several agencies have responsibility for responding to complaints involving this type of serious misconduct ' especially conduct that results in injury. State agencies that license nursing home administrators, physicians and other professionals receive abuse-related complaints involving those individuals.
In most states, the local department of social services is responsible for investigating abuse complaints. Law enforcement officials are often called upon to investigate.
It is crucial that abuse in nursing homes never go unrecognized or unreported. The ombudsman can provide help in knowing whom to call.
- Litigation. If repeated attempts to resolve a problem have failed, or if there has been serious abuse or neglect, taking the situation to an attorney may be an appropriate course of action. Seek an attorney experienced in personal injury and civil trial law who is familiar with nursing home issues.
In pursing a nursing facility for their liability, you have the opportunity to shine the light of truth on those who have injured your loved one. You will have the opportunity to have a jury determine what justice demands be done to right the wrong perpetrated on your loved one.
It is important, too, to understand that there is no requirement to first seek redress within the nursing home. In especially bad situations, in fact, such pre-litigation maneuvering may only delay justice for your loved one.
In conclusion, you must be ever vigilant to ensure that your nursing home-bound loved one is treated properly as is required. Further, always know that the American Civil Justice System provides you with the key to the courthouse to seek justice when your loved one is negligently treated.
Mark A. Tate is with the Savannah law firm of Middleton, Mathis, Adams & Tate P.C. His practice focuses primarily in the areas of personal injury, product liability, premises liability and wrongful death. He is currently president of the Savannah Trial Lawyers Association.
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