Nursing Home & Elder Abuse Law Center

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Nursing Home & Elder Abuse Law Center

SUMMARY OF THE RIGHTS OF ELDERS

(The following article is not legal advice. If you, or a loved one, have been the victim of elder abuse or neglect, you should promptly contact an experienced elder law attorney or lawyer. If you delay, your valid nursing home abuse claim may be barred by law. This article may not be reproduced, copied, duplicated or in any way retransmitted without the express, written consent of the Nursing Home & Elder Abuse Law Center. All rights reserved.)

Nursing Home residents, seniors, and elders have numerous legal rights under both federal and state law. Most of the Federal rights are found in the Code of Federal Regulations ("C.F.R."), Title 42, which may be found online at http://www.gpoaccess.gov/cfr/index.html The rights afforded to seniors under state laws are typically found in each states' statutes, regulations and codes. For example, in California the elder abuse laws and statutes are located primarily in the California Health & Safety Code, the California Welfare & Institutions Code, which may be found online at http://www.leginfo.ca.gov/calaw.html, and in the California Code of Regulations, Title 22, at http://www.calregs.com

The California Elder Abuse Act

In California, anyone age 65 or older is protected by a special set of laws called The Elder Adult and Dependent Adult Civil Protection Act ("The Elder Abuse Act"), which is a powerful set of laws designed to help prevent neglect and abuse to California seniors. (Welf & I C §§15600 et seq.) Also protected under The Elder Abuse Act are "dependent adults," which are any California residents between the ages of 18 and 64 who have physical or mental limitations that restrict their ability to carry out normal activities or to protect their rights, or who are inpatients at a 24-hour health care facility. (Welf & I C 15610.23.)

What is the Definition of "Elder Abuse"?

Under The Elder Abuse Act, "abuse" is defined broadly and includes physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment resulting in physical harm or pain or mental suffering. Therefore, any form of neglect to anyone age 65 or older is a form of elder abuse in California!
So, what is "neglect" under The Elder Abuse Act? "Neglect" includes the negligent failure by any caretaker to exercise the degree of care that a reasonable person would exercise (including, but not limited to, assistance in personal hygiene; provision of food, clothing, shelter, and medical care; and protection from health and safety hazards). (Welf & I C §15610.57.) For example, a nursing home commits elder abuse when it causes a resident to sustain severe bedsores; fails to keep residents hydrated and nourished; fails to prevent falls; fails to obtain medical treatment for residents in need; etc. Elder abuse can also result from caregiver's deprivation of goods or services that are necessary to avoid physical harm or mental suffering to a resident. (Welf & I C §15610.07.) Senior abuse includes unreasonable physical constraint, or prolonged or continual deprivation of food or water. (Welf & I C §15610.63.)

 

So remember, if a nursing home neglects a resident, and such neglect causes a serious injury, then the nursing home or long term care facility may be liable for elder abuse or elder neglect under the Elder Abuse Act. If you are unsure, contact the appropriate state agency or contact an experienced elder law attorney who specializes in elder abuse cases.

What is the Impact on a Nursing Home that Commits Elder Abuse?

In a nursing home abuse case, if the plaintiff proves by clear and convincing evidence that a defendant nursing home is guilty of recklessness, oppression, fraud, or malice in abusing an elder or dependent adult, then the Court will award attorneys' fees, costs, and damages for pain and suffering. [Welf & I C §15657(a).] The Court must consider all relevant factors, including the value of the abuse-related litigation in terms of the quality of life of the elder or dependent adult, the results obtained, whether the defendant took reasonable and timely steps to determine the likelihood and extent of liability, and the reasonableness and timeliness of any written settlement offer. (Welf & I C §15657.)

 

The Elder Abuse Act also states that damages for pain and suffering endured by an elder are still recoverable after the elder's death - up to $250,000. [Welf & I C §15657(b).] Normally, claims for pain and suffering cannot be recovered once a plaintiff dies (and the nursing home's attorneys know this!) The ability to recover pain and suffering after a victim dies from his/her injuries caused by a nursing home, together with the ability to recover attorneys' fees, makes a contingency case on an elder abuse claim viable. Before the enactment of the Elder Abuse Act, most attorneys were not interested in prosecuting elder abuse cases because there were no wage loss claims (since the vast majority of seniors have long been retired), pain in suffering were rarely recoverable (for the above reasons), and the cases are often complex given the medical issues typically involved. As a result, the enactment of the Elder Abuse Act is a significant set of laws that now make it feasible for lawyers to bring civil lawsuits against nursing homes and long term care facilities that commit elder abuse and neglect.

Who may be Liable When a Resident is Abused or Neglected?

Both the nursing home (i.e., the employer) and the caregivers (i.e., the employees) may be held liable for abuse or neglect. [See Welf & I C §15657(c).] The nursing home is liable for the abuse or neglect of its caregivers if the nursing home acts with a conscious disregard for the safety of a resident, knowingly participates in the wrong, or knowingly ratifies the improper act(s). This is important because neglectful nursing homes, and abusive long term care facilities, often try to duck and hide from liability by claiming that they were unaware of the neglect and abuse being inflicted on its residents (often while the nursing home and facility owners are enjoying healthy profits). A facility's failure to address known abuses, such as those reported to the local health department or government authority, may constitute such ratification. (Again, if you are unsure about any of the above legal issues, we highly recommend that you promptly contact a lawyer or attorney experienced in prosecuting elder abuse and senior neglect cases.)
So, for example, if a nursing home hires an untrained, unskilled, or unqualified person as a caregiver, and that caregiver neglects or abuses a resident, then a court should find a "conscious disregard" for the "safety" of the resident. And, of course, nursing homes that put company profits ahead of the safety and well-being of its residents may be liable if abuse or neglect to an elder or resident results in serious injury or death.

Obligations of Nursing Home to their Residents.

Nursing homes are required to inform residents of their federal and state rights and protect and promote their rights. If a resident is incapable of exercising his or her rights, the person designated by law (such as conservator, attorney-in-fact, or designated family member), may exercise these rights.

Grievances

• Residents have the right to exercise rights, voice grievances, and recommend changes in policies and services to facility staff and/or outside representatives of the resident’s choice, free from restraint, interference, coercion, discrimination or reprisal. [42 C.F.R. §483.10(f)(1)]
• Residents have the right to prompt efforts by the facility to resolve grievances the resident may have, including those having to do with other residents. [42 C.F.R. §483.10(f)(2)]

Admission Agreements

The resident has rights pertaining to the content of admission agreement contracts, which are signed at the time the resident enters the nursing home:

• The contract may not require that the resident pay with private funds (i.e. with funds that are not Medicare or Medi-Cal) for a specified period of time. [Cal. Health & Safety Code §1599.69(a)]
• The contract may not require, at the time of admission, the resident to give notice that he or she intends to convert to Medi-Cal status. [Health & Safety Code §1599.69(b)]
• The contract may not require the resident to promise not to apply for Medicare or Medi-Cal benefits. [42 C.F.R. §483.12(d)(1)(i-ii)]
• The contract may not require a third-party guarantee of payment as a condition of admission or expedited admission. [42 C.F.R. §483.12(d)(2); Cal. Welfare & Institutions Code §14110.8(b)]

Right to Return of Security Deposit

When the resident converts to Medi-Cal.[Cal. Health & Safety Code §1599.70(b); Cal. Welfare & Institutions Code 14110.8(d)]

Medical Condition and Treatment

• The resident has the right to be fully informed by a physician of his or her total health status and to be afforded the opportunity to participate on an immediate and ongoing basis in the total plan of care. [42 C.F.R. §483.10(b)(3)]
• To be fully informed in advance about care and treatment and of any changes in care or treatment that may affect the resident. [42 C.F.R. §483.10(d)(2)]
• To participate in planning care and treatment or changes in care or treatment unless adjudged incompetent or otherwise found to be incapacitated under State law. [42 C.F.R. §483.10(d)(3)]
• To self-administer medications (unless doing so would be dangerous). [42 C.F.R. §483.10(n)]
• To choose a personal attending physician. [42 C.F.R. §483.10(d)(1)]
• To consent to or refuse any treatment or procedure or participation in experimental research. [42 C.F.R. §483.10(b)(4)]
• To receive all information that is material to his or her decision concerning whether to accept or refuse any proposed treatment or procedure. (42 C.F.R. §483.10(b)(8))

Protection of Resident Funds

• The resident has the right to manage his or her financial affairs and a facility may not require residents to deposit their personal funds with the facility (although a resident can if he/she desires). [42 C.F.R. §483.10(c)(1)]
• Have funds entrusted to the facility held separately from the funds of the facility and from those of other residents, and have an accurate accounting of those funds. [42 C.F.R. §483.10(c)(3)]
• Be informed when the amount in the resident’s account, if managed by the facility, reaches $200 less than the $2000 Medi-Cal resource limit and, if increased, may cause the resident to be disqualified from Medi-Cal. [42 C.F.R. §483.10(c)(5)]

Transfer and Discharge

The resident has the right to be transferred or discharged only if:

• He or she has recovered to the point of not needing nursing home care. [42 C.F.R. §483.12(a)(2)(ii)]
• It is necessary for the resident’s welfare and her/his needs cannot be met in the facility. [42 C.F.R. §483.12(a)(2)(i)]
• The health or safety of others is endangered. [42 C.F.R. §483.12(a)(2)(iii) and (iv)]
• He or she has failed to pay for care. [42 C.F.R. §483.12(a)(2)(v)]
• The facility ceases to operate. [42 C.F.R. §483.12(a)(2)(vi)]

Other Rights Regarding Transfer or Discharge from a Nursing Home:

• A nursing home must give both the resident and a family member or legal representative advance notice of the transfer or discharge as soon as practicable or reasonable, or in some cases, at least 30 days in advance. [42 C.F.R. §483.10(b)(11)(D), §483.12(a)(4), (5); Title 22, Cal. Code of Regulations §72527(a)(5)]
• A nursing home that participates in the Medi-Cal program may not transfer or seek to evict a resident when he or she changes from private pay or Medicare to Medi-Cal, or while the Medi-Cal application is pending. [42 C.F.R. §483.12(c)(1); Cal. Welfare & Institutions Code §14124.7(a)]
• The nursing home must provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility. [42 C.F.R. §483.12(a)(7); Cal. Health & Safety Code §1599.78)]
• The nursing home must produce a discharge summary that includes a post-discharge plan of care that is developed with the participation of the resident and his or her family, which will assist the resident to adjust to his or her new living arrangement. [42 C.F.R. §483.20(l)(3)]
• Residents have a right to a 7-day bed-hold and immediate re-admission when transferred to a general acute care hospital, if the resident continues to pay for the nursing home bed. [42 C.F.R. §483.12(b); Cal. Health & Safety Code § 1599.79; Title 22, Cal. Code of Regulations, §72520(a)]
• After a hospitalization, the resident has the right to be re-admitted to the nursing home's first available bed, if the nursing home fails to give written notice of the resident's right to a 7-day bed-hold. [Cal. Health & Safety Code §1599.79; Title 22, Cal. Code of Regulations, §72520(c)]
• After a hospitalization, a resident who is a Medi-Cal recipient has the right to the nursing home’s first available bed even if he or she is absent from the nursing home for more than 7 days. [42 C.F.R. 483.12(b)(3)]

Chemical & Physical Restraints & Abuse

The resident has the right to:

• Be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion. [42 C.F.R. §483.13(b)]
• Be free from any physical or chemical restraints, either psychotherapeutic or antipsychotic drugs, imposed for purposes of patient discipline or staff convenience which are not required to treat the resident's medical symptoms, except in an emergency which threatens to bring immediate injury to the resident or others. [42 C.F.R. §483.13(a)]
• Be given the necessary information to be able to refuse or accept the use of psychotherapeutic drugs, physical restraints, or the prolonged use of a device that may lead to the inability to regain use of normal bodily functions, which will allow the resident to give informed consent about the use of these methods. [Title 22, Cal. Code of Regulations §72528(c)]
• The nursing home must ensure that residents who have not used antipsychotic drugs are not given these drugs unless antipsychotic drug therapy is necessary to treat a specific condition. [42 C.F.R. §483.25(l)(2)(i)]
• The nursing home must ensure that residents who use antipsychotic drugs receive gradual dose reductions or behavioral programming in an effort to discontinue these drugs, unless clinically contraindicated. [42 C.F.R. §483.25(l)(2)(ii)]
• The facility must ensure that each resident's drug regimen is free from unnecessary drugs. [42 C.F.R. §483.25(l)(1)]

Resident Records

• Residents have the right to personal privacy and confidentiality of his or her personal and clinical records. [42 C.F.R. §483.10(e)]
• Residents have the right to review all records pertaining to the resident upon oral or written request within 24 hours, and to purchase photocopies of these records with two days advance notice. [42 C.F.R. §483.10(b)(2)]
• Residents have the right to approve or refuse release of records to any individual or agency outside the facility except when transferred or required by law. [42 C.F.R. §483.10(e)(2) and (3)]

Dignity and Privacy

The resident has the right to be treated with consideration, respect and full recognition of dignity and individuality [42 C.F.R. §483.15(a)]. This includes the right to:

• privacy during treatment and personal care; [42 C.F.R. §483.10(e)(1)]
• receive and make phone calls in private; [42 C.F.R. §483.10(k)]
• send and receive mail unopened; [42 C.F.R. §483.10(i)(1)]
• associate privately with persons of resident’s choice, inside or outside the facility. [42 C.F.R. §483.15(b)(2)]

Free Choice and Participation

• Residents have the right to refuse to perform services for the facility. [42 C.F.R. §483.10(h)(1)]
• Residents have the right to choose activities and schedules consistent with his or her interests and care plan and to receive services with reasonable accommodation of individual needs and preferences. [42 C.F.R. §483.15(b)(1) and (e)(1)]
• Residents have the right to participate in resident groups and in activities of social, religious and community groups. [42 C.F.R. §483.15(c)(1) and (d)]
• Residents have the right to communicate with persons of one’s choice inside or outside of the facility. [42 C.F.R. §483.10]
• Residents have the right to retain and use personal clothing and possessions as space permits if it doesn’t infringe upon the rights or health and safety of other residents. [42 C.F.R. §483.10(l)]

Access and Visitation

Subject to the resident’s right to deny or withdraw consent at any time, a resident has the right, and the facility must provide, immediate access to any resident by:

• Immediate family or other relatives of the resident. [42 C.F.R. §483.10(j)(1)(vii)]
• Others who are visiting with the consent of the resident, subject to reasonable restrictions. [42 C.F.R. §483.10(j)(1)(viii)]
• The facility must provide reasonable access to any resident by any entity or individual that provides health, social, legal or other services to the resident. [42 C.F.R. §483.10(j)(2)]
• If a resident is married, he or she and their spouse must be assured privacy and to be able to share a room if both are residents in the facility and both agree to do so. [42 C.F.R. §483.10(e)(1) and (m)]

Resident & Family Councils

• A resident has the right to organize and participate in resident groups in the facility. [42 C.F.R. §483.15(c)(1)]
• The facility must provide a resident group with private space. [42 C.F.R. §483.15(c)(3)]
• Visitors may attend meetings at the group’s invitation. [42 C.F.R. §483.15(c)(4)]
• The facility must provide a designated staff person responsible for providing assistance and responding to written requests from the resident council. [42 C.F.R. §483.15(c)(5)]
• The nursing home must listen to the views, and act upon the grievances and recommendations of a resident council, concerning policies affecting resident care and life in the facility. [42 C.F.R. §483.15(c)(6)]
• A resident’s family has the right to meet in the facility with families of other residents, and a nursing home may not prohibit the formation of a family council. [42 C.F.R. §483.15(c)(2)]
• A family council may be made up of family members, friends, or representatives of residents. [Cal. Health & Safety Code §1418.4(b)]
• The family council must be allowed to meet in a common meeting room of the nursing home at least once a month, and to meet in private without nursing home staff present. [42 C.F.R. §483.15(c)(3); Cal. Health & Safety Code §1418.4(a), (c)]
• Staff or visitors may attend family council meetings, at the group’s invitation. [42 C.F.R. §483.15(c)(4); Cal. Health & Safety Code §1418.4(e)]
• The nursing home is required to consider the views, and act upon the grievances and recommendations of a family council, concerning proposed policy and operational decisions affecting resident care and life in the facility. [42 C.F.R. §483.15(c)(6); Cal. Health & Safety Code §1418.4(g)]
• The nursing home is required to respond within 10 working days to written requests or concerns of the family council. [Cal. Health & Safety Code §1418.4(h)]