Legal Considerations Involving a Nursing Home
The United States population is aging. More and more people are finding family members or themselves in nursing homes in their later years. The need for nursing homes will continue to increase as the baby boomer generation moves through their senior years. Everyone wants what is best for their relatives when faced with the decision to place someone in a nursing home. There are many legal issues people do not consider when putting their loved one in a nursing home. This article will address some of the legal concerns you should consider when deciding on a nursing home and what to watch for when your loved one is in a nursing home.
Deciding on a Nursing Home
I will not focus on the obvious considerations which go into selecting a nursing home. Sites such as the AARP and the National Institute on Aging do a good job of educating you on these factors. I will discuss some of the legal issues which you may not realize and are not commonly addressed. In making a decision on a nursing home, investigate the nursing home’s disciplinary record, whether they have liability insurance and whether their admission contract requires arbitration of disputes.
Did you know you that disciplinary action against nursing homes resulting from violations of the Nursing Home Care Act are available on-line? It is easy to investigate whether a nursing home has a prior history of violations and disciplinary action. Also, did you know that Medicare has a rating system based on five stars which compares nursing homes? Because the care of so many nursing home residents is paid for by Medicare, they want to encourage the best care possible for the nation’s elderly. It is very important to consult these sources before deciding on a nursing home.
Would it surprise you that some nursing homes have no liability insurance? The nursing home could negligently hurt your loved one and there would be no insurance to pay for the injuries. Believe it or not, there are many nursing homes which do not carry liability insurance. There is no legal requirement to do so. Nursing home operators have also learned how to legally structure their corporations so the prospects of making a financial recovery for nursing home abuse are slim if there is no liability insurance. When investigating a nursing home, always make sure they carry liability insurance.
Some nursing homes require patients to arbitrate any legal dispute between the resident and the nursing home. Arbitration is a legal process which takes a case out of the court system and places it before an arbitrator who decides legal issues. While there are benefits to arbitration in certain circumstances, you should not agree to arbitration with regard to any dispute with the nursing home. Most importantly, an arbitration clause prohibits a jury from hearing the facts of your case. The treatment of some nursing home residents is so atrocious, you would want a jury to decide the case to send a message to the nursing home that the elderly should be treated with dignity and respect. Consider asking the nursing home before even visiting it whether they require arbitration of disputes. While this should not be determinative, it is something you should avoid.
Nursing Home Abuse
It is a sad reality that abuse occurs in nursing homes. Generally, abuse results from neglect of the needs of the residents. The neglect stems from understaffing by nursing homes to save on costs. Understaffing at nursing homes has reached epidemic proportions. More and more residents being attended to by fewer and fewer people is a recipe for abuse.
Nursing Home Bill of Rights
Despite understaffing, nursing home residents in Illinois have certain rights which are set forth in the Illinois Nursing Home Care Act. These are legally enforceable rights afforded to all nursing homes residents in Illinois. Many families are unaware of the law which creates these rights. It is worthwhile to be familiar with the legal rights of your loved one and enforce them if necessary.
The National Center on Elder Abuse (NCEA) has a fantastic publication called, “Nursing Home Abuse Risk Prevention Profile and Checklist” which is available as a free download. The NCEA serves as a national resource for elder rights advocates, law enforcement and legal professionals, medical and mental health providers, public policy leaders, researchers, and concerned citizens. It is the mission of NCEA to promote understanding, knowledge sharing, and action on elder abuse, neglect, and exploitation.
Filing a Request for Investigation
If you suspect abuse or neglect of a loved one in a nursing home, McCready Law encourage our clients to file a request for investigation through the Illinois Department of Public Health (IDPH). Each quarter, the IDPH conducts an inspection of random nursing homes in Illinois. If someone makes a request for an investigation, the IDPH will investigate the complaint the next time their inspectors visit the facility. After the investigation, the IDPH will issue its findings to the complainant. We have often used this investigation as the basis to proceed with legal action. However, if you suspect abuse or neglect, the first step is file a request for investigation.
Examples of Nursing Home Abuse
Given the chronic understaffing at nursing homes, it is not surprising that most nursing home abuse stems from neglect. Many nursing home residents are bedridden, or lack a certain amount of mobility. Bedridden nursing home residents should be moved or repositioned every two hours. Repositioning helps to minimize rubbing, pressure and friction. Failure to reposition a bedridden resident can result in decubitus ulcers, also known as bedsores. Our office has handled many pressure sore cases from nursing homes. Bed sores are largely preventable and should be treated before they progress.
Another common example of nursing home abuse is poor nutrition. Malnourishment can lead to physical or mental problems. All nursing home residents need to eat and some require assistance. Inadequate staffing can lead to residents not eating enough, which in turn leads to malnutrition or dehydration. In some cases, nursing homes will even recommend a feeding tube, which may be more for the convenience of the nursing home staff than it is a medical necessity for the resident.
Some nursing homes do not adequately protect against infection. A dirty and germ invested environment is particularly dangerous for the elderly whose health and immune systems may already be compromised. Infections can be transmitted due to poor housekeeping, improper food handling and poor training. A nursing home should look and smell clean when you visit. If it does not, it may lead to increased risk of infection.
The decision to place a loved one in a nursing home is never easy and should not be taken lightly. Before placing a loved one in a nursing home, be sure to investigate the facility carefully. After selecting a nursing home, monitor the care of your loved one to ensure they are being treated with the dignity and respect which they deserve. If you suspect neglect or abuse, feel free to contact our office to assist you.