Nursing Home Abuse:

Statutory Protection of Older Persons

Every state has certain laws and statutes that may be involved in a nursing home neglect or abuse case.  Below, you'll find a detailed overview of some of the laws that help protect the elderly.

Adult Protective Services

Before any civil or criminal action is brought against a nursing home, a report will have to be made to your state's adult protective services agency, or another system in place for the reporting and investigation of allegations of the abuse, neglect, or exploitation of the elderly.

All states have a system for reporting allegations of abuse, neglect, and exploitation of the elderly, for investigating the allegations and, if the allegations are true, for providing services to the elderly person to fix the problems and prevent their recurrence. Most states even have mandatory reporting requirements with respect to these allegations. If an agency comes to the conclusion that an allegation is well-founded, it will respond by offering the older person appropriate services, such as medical assistance, counseling, special transportation, assistance with money management, or placement in a different residential setting.

Adult protective services might meet the needs of a nursing home resident who has been physically abused, sexually abused, neglected, or exploited. However, there may be situations where the victim or the victim's family does not feel satisfied or justly compensated for the injury or indignity suffered at the hands of the nursing home. In cases such as those, the resident or resident's family member should speak to a nursing home abuse attorney about bringing a civil action for damages against the nursing home. In addition, the circumstances may warrant a criminal prosecution.

Civil Actions Based on Statute

Some state legislatures have authorized causes of action involving the abuse, neglect, or exploitation of older people, which allow victims to bring civil actions against a nursing home and/or their employees. This may authorize damage awards to victims, but may also authorize the issuing of injunctions and restraining or protective orders. Some states also have special statutory rights of action for the violation of the rights of residents of long-term care facilities. Generally, the statutory rights of long-term care facility residents include the right to be free from nursing home abuse and neglect and the right to a safe environment.

To qualify for Medicaid funds, long-term care facilities that qualify as "skilled nursing facilities" must meet certain federal, statutory and regulatory requirements. Most nursing homes today fall in this category and must meet federal standards. One federal requirement is that these facilities comply with a nursing home "Residents' Bill of Rights," which states that residents have the right to be free from verbal, sexual, physical and mental abuse, corporal punishment and involuntary seclusion.

Federal law does not specifically create a cause of action for nursing home residents who suffer from violations of their statutory rights, but personal injury attorneys may find ways to bring successful claims under other federal statutes that affect the disbursement of federal funds to nursing homes, such as the Federal False Claims Act. Another option would be to sue a nursing home for false advertising if, for example, it claimed to maintain high-quality resident care, but is found to have violated federal standards of care.

Elder Abuse Law

State definitions of abuse do vary but many states' definitions of elder abuse include actions that cause emotional anguish, psychological injury, or suffering. These definitions may cover a wide range of acts, from verbally insulting or demeaning an older person, to other actions that have the effect of causing emotional pain to, or instilling fear in, an older person. Some states also include isolation or unreasonable confining of elderly people as a form of abuse. Isolation might include preventing communications with, or visits to, the older person. "Unreasonable confinement" suggests that, while some circumstances require an older person's movement to reasonably need to be restricted for his or her safety, confinement beyond that can be considered abuse. Additionally, laws that apply to nursing homes may also include the unnecessary use of physical or chemical restraints as forms of abuse.

Neglect

Nursing home residents are generally dependent on others for at least some of their basic needs, such as food, shelter, and medical treatment. Being deprived of these necessities can harm or endanger an older person.

Most states define neglect of an older person as the failure to provide him or her with services essential to health and safety, such as food, shelter, clothing, supervision, and medical care. Whether this is intentional behavior or careless behavior, will determine whether a case against a nursing home is framed as one for neglect or abuse.

Exploitation

Another way nursing home residents may be harmed is by being taken advantage of by their caregivers. This may include having their money or property taken, being induced to perform sexual acts without consent, or being forced to perform other services for the benefit of the caregiver. This might not endanger the older person's health or safety, but it can result in the loss of the person's property or self-esteem.

Many states define exploitation of an elder as the wrongful use of an older person's resources for another's profit or advantage. Some definitions refer to the misuse of the person's funds, property, or person. Other states specify that, to qualify as exploitation, the resources must have been obtained without the older person's consent, or obtained through unreasonable influence, duress, deception or false pretenses. One type of exploitation is a breach of a fiduciary relationship, such as a guardianship or power of attorney, in which the older person's property or resources are misused.

Non-financial exploitation of older people, such as sexual exploitation of an elder, is also addressed by statute in most states. It is implicit in most states that the acts complained of are done without the older person's consent, through threats, intimidation or undue influence, or because the older person is unable to give informed consent.

If you believe a loved one has been the victim of nursing home abuse or neglect, contact an experienced nursing home abuse attorney today.  He or she will be able to determine which statutory protections apply and how you can best build a strong case against those responsible.

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