With over 1.5 million elderly and dependent adults now living in nursing homes throughout the country, abuse and neglect has become a widespread problem. Even though some nursing homes provide good care, far too many are subjecting helpless residents to needless suffering and death. Most residents in nursing homes are dependent on the staff for most or all their needs such as food, water, medicine, toileting, grooming, and turning - almost all their daily care. Unfortunately, many residents in nursing homes today are starved, dehydrated, over-medicated, and suffer painful pressure sores. They are often isolated, ignored and deprived of social contact and stimulation. Because of insufficient and poorly trained staff commonly found in nursing homes (a common problem caused by corporate owners who are more concerned about profits than the care they should be providing), care givers are often overworked and grossly underpaid that often results in rude and abusive behavior to vulnerable residents who beg them for simple needs such as water or to be taken to the bathroom.

Nursing Home Abuse and Neglect may include the following:

Abuse:

• Assault
• Battery
• Sexual Assault
• Unreasonable physical constraint
• Prolonged or continual deprivation of food or water
• Use of a physical or chemical restraint or psychotropic medication for any purpose not consistent with that authorized by the physician

Neglect:

• Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter
• Failure to provide medical care for physical and mental health needs
• Failure to protect from health and safety hazards
• Failure to prevent malnutrition

Federal and State Laws
Federal and State laws require that nursing homes develop a plan of care and employ sufficient staffing to provide ALL the care listed on the care plan. Because many corporate owned nursing homes today are not sufficiently staffed, they fail to provide all the care listed on the care plan. Consequently, residents are not taken to the toilet when necessary, they are often left lying in urine and feces, develop painful and life threatening pressure sores, are not fed properly, are not given sufficient fluids, are over-medicated or under-medicated, are dropped causing painful bruises and fractures, are not cleaned or groomed, are ignored and not included in activities, are left in bed all day, are not turned, call lights not answered promptly or not at all, etc., all forms of neglect.

Nursing homes who receive federal funds are required to comply with federal laws that specify that residents receive a high quality of care. In response to reports of widespread abuse and neglect in nursing homes in the 1980s, Congress enacted legislation in 1987 to reform nursing home regulations and require nursing homes participating in the Medicare and Medicaid programs to comply with certain requirements for quality of care. The legislation, included in the Omnibus Budget Reconciliation Act of 1987 (OBRA 1987), also known as the Nursing Home Reform Act, specifies that 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 be in compliance with the federal requirements for long term care as prescribed in the U.S. Code of Federal Regulations (42 CFR Part 483). Under the regulations, the nursing home must:

• Have sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care (42 CFR § 483.30).
  
  
• Conduct initially (no later than 14 days after admission) and periodically (after a significant change in the resident's physical or mental condition and, in no case, less often than once every 12 months) a comprehensive, accurate, standardized, reproducible assessment of each resident's functional capacity (42 CFR § 483.20).
  
  
• Develop a comprehensive care plan for each resident that includes measurable objectives and timetables to meet a resident's medical, nursing, and mental and psychosocial needs that are identified in the comprehensive assessment. The care plan must be developed within 7 days after completion of the comprehensive assessment and describe the services that are to be furnished. Also, the care plan must be periodically reviewed and revised by a team of qualified persons after each assessment (42 CFR § 483.20).
  
  
• Prevent the deterioration of a resident's ability to bathe, dress, groom, transfer and ambulate, toilet, eat, and to use speech, language or other functional communication systems (42 CFR § 483.25).
  
  
• Provide, if a resident is unable to carry out activities of daily living, the necessary services to maintain good nutrition, grooming, and personal and oral hygiene (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, must 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 and prevent urinary tract infections (42 CFR § 483.25).
  
  
• Ensure that the resident receives adequate supervision and assistive devices to prevent accidents (42 CFR § 483.25).
  
  
• Ensure that a resident maintains acceptable parameters of nutritional status, such as body weight and protein levels (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).
  
  
• Care for its residents in a manner and in an environment that promotes maintenance or enhancement of each resident's quality of life (42 CFR § 483.15).
  
  
• Promote care for residents in a manner and in an environment that maintains or enhances each resident's dignity and respect in full recognition of his or her individuality (42 CFR § 483.15).
  
  
• Ensure that the resident has the right to choose activities, schedules, and health care consistent with his or her interests, assessments and plan of care (42 CFR § 483.15).
  
  
• Ensure that the medical care of each resident is supervised by a physician and must provide or arrange for the provision of physician services 24 hours a day, in case of an emergency (42 CFR § 483.40).
  
  
• Provide pharmaceutical services (including procedures that assure the accurate acquiring, receiving, dispensing, and administering of all medications) to meet the needs of each resident (42 CFR § 483.60).
  
  
• Be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident (42 CFR § 483.75).
  
  
• Maintain clinical records on each resident in accordance with accepted professional standards and practices that are complete, accurately documented, readily accessible, and systematically organized (42 CFR § 483.75).

In addition to federal laws regulating the quality of care in nursing homes, states have enacted laws as well. The state laws must be at least as stringent as the federal laws. Some states have adopted laws that are tougher than the federal laws.

In short, a nursing home must conduct an initial comprehensive assessment of each resident and periodic re-assessments quarterly or as needed if there is a significant change in the condition of the resident. From the assessment, a plan of care must be developed that specifies the necessary care that must be provided. The facility must have sufficient nursing personnel to provide all the necessary care to each resident in accordance with the assessment and plan of care. The nursing home is required to document the assessments, plans of care, and the care provided, in the resident's clinical record. With both federal and state laws regulating nursing homes, almost every aspect of a nursing home's operation and resident care are covered under the regulations. Thus, when a nursing home willfully does not provide required care, and that failure to provide care results in the deterioration and/or death of the resident, the nursing home may have violated federal and state laws. If the resident's care was being reimbursed by Medicare or Medicaid, then the nursing home may have also submitted false claims to the government.

Legal Remedies
One of your remedies is to take private legal action against the nursing home in state court. Each state has a different set of laws, but the most common suits are for abuse and neglect or wrongful death. Some states also have unfair business practice laws that allow any individual to sue for additional damages.

Time Limits on Filing Suit
Every case has a statute of limitations that will apply. It varies by the type of case and the state where the case is filed. Don't wait until there is trouble or until the end of your case to get a lawyer. Your attorney would prefer to be involved every step of the way, to monitor your case, to guide you, to prevent trouble, and to assist you.

Irwin & Boesen represents persons who have suffered as a result of nursing home abuse and their families. Please contact us for a free case evaluation.