As technology continues to advance, America’s elderly population grows bigger and bigger. Studies from the Population Reference Bureau (PRB) show that “the current growth of the population ages 65 and older […] is unprecedented in U.S. history.” Accordingly, nursing homes and other elder care facilities are more important than ever. Everyone deserves to live out their twilight years in peace. Unfortunately, not every nursing home or staff member has residents’ best interests in mind. Whether you have recently placed a loved one in a nursing home or are going to be a nursing home resident yourself, empowerment is the first step to prevention. Do you know the legal rights and protections afforded to nursing home residents?
Nursing home abuse is a subtype of elder abuse, which can come in many different forms. It tends to be an underreported phenomenon, as victims may have shame about being abused. They may also internalize the abuse, and feel responsible for it. Thus, some victims do not even realize they are victims at all. Still, in a World Health Organization (WHO) study, every 2 in 3 nursing home staff members confessed to committing abuse in the past year. Furthermore, approximately 1 in 6 older adults (aged 60 and older) reported experiencing some form of abuse. Both staff members and older adults (along with their proxies) reported psychological abuse, physical abuse, financial abuse, neglect, and sexual abuse.
In 1987, the federal government passed the Nursing Home Reform Act, which required all nursing homes to “promote and protect the rights of each resident.” Additionally, the law made it a requirement that each nursing home that takes Medicare and Medicaid payments must meet federal residents’ rights requirements. Some states also have their own separate residents’ rights laws and regulations. Federally, however, each nursing home resident is guaranteed the following general categories of rights:
Since Medicare is not a comprehensive insurance program, nursing home residents using Medicare usually have stipulations on their nursing home coverage. In most cases, any covered nursing home care must have a direct connection to hospital care. It must be determined medically necessary, and the patient must also enter the nursing home within 30 days after a hospital stay of three or more nights.
In contrast, Medicaid makes up about half of all nursing home revenue. However, Medicaid also pays lower rates than private individuals. Consequently, it is not uncommon for nursing homes to try to cut corners for residents using Medicaid. Fortunately, the Nursing Home Reform Act accounts for situations like this. According to the law, all nursing homes that take Medicaid “must establish, maintain and implement identical policies and practices regarding transfer and discharge […] and the provision of services for all individuals regardless of the source of payment.” In other words, all residents must receive equal care regardless of their payment methods.
Nursing home residents and their family members may have a hard time keeping up with the coordination of the resident’s care. Obviously, elder-care facilities make it their work to understand care plans. Perhaps surprisingly, this can leave new residents and their loved ones feeling a bit shell-shocked—especially if it is their first nursing home encounter. The Nursing Home Reform Act exists to prevent such situations. All residents and their loved ones should feel involved in their care plans, and they have a right to tailor them as they see fit. Nursing homes should be able to accommodate such needs without having the residents need to bring in third-party resources. On the contrary, they are under a legal obligation to provide their residents with all necessary care. Dissatisfied residents and their family members may choose to contact local ombudsmen to resolve any issues.
As we have previously established, nursing homes are likely to get more crowded as time goes by. In some facilities, this is already an issue that worries some residents. Fortunately, there are only a few reasons that a nursing home can evict a resident. These are:
Nursing homes are legally obligated to send any discharged residents a written notice. These are generally sent out 30 days in advance. They must include supporting evidence and the phone numbers of the nursing home inspection and licensing authorities. They must also include instructions on how to appeal the eviction decision.
Some elderly individuals can no longer safely live on their own but are resistant to the prospect of nursing home care. In such cases, adult children or other relatives may demand they move to a facility and try to check them in against their will. However, this is almost impossible to do. Elder-care facilities will only accept unwilling residents if they are checked in by a legal guardian. Legal guardianship is not easy to get, as it involves proving that the individual is no longer capable of making decisions for themselves. Any elderly individual that is of sound mind still has the autonomy and the legal right to deny care, should they choose to do so.
If you or a loved one have recently fallen victim to nursing home abuse, we at Injury Victim Law may be able to help. Though we are a Colorado-based firm, our team of experts and investigators is ready and available to assist personal injury victims all across the country. Contact us today to schedule an initial consultation with one of our experienced nationwide nursing home abuse attorneys. Let us fight for you.