Nursing Home and Assisted Living Facility Abuse and Neglect.

INTRODUCTION Nursing homes and assisted living facilities provide fundamental care to our seniors, our spouses, our parents. This care should be provided in a dignified manner and in a safe and secure environment. While most often our family members receive excellent care, there are occasions when the reality is starkly different. On those occasions when abuse or neglect rears its ugly head the care provider should be taken to task. With advances in medical care and the progression of baby boomers into their senior years, the federal government and several states have reacted to concerns regarding the rights, health, safety and welfare when they are residents in long-term care facilities. Florida leads the way in an aggressive approach to protect its seniors. Due to continued concerns over the condition of residents in nursing homes and assisted living facilities, the Florida Legislature passed a series of acts and developed a comprehensive legislative scheme known as Chapter 400. The stated purpose behind the act is: "To provide for the development, establishment and enforcement of basic standards for: (1) the health, care and treatment of persons in nursing homes and related health care facilities and; (2) the construction, maintenance, and operation of such institutions which will insure safe, adequate, and appropriate care, treatment, and health of persons in such facilities." With regard to assisted living facilities where 24-hour nursing care is not provided, Florida maintains that each resident is entitled to a safe and decent living environment, free from both abuse and neglect. THE RESIDENT'S RIGHTS The Legislature has gone beyond merely prohibiting certain conduct by nursing homes and assisted living facilities. Florida has passed itemized rights which each nursing home and assisted living facility resident enjoys, and which is protected by law. Florida puts the burden of protecting these rights on the nursing home or assisted living facility. When these long term care facilities apply for their license, they maintain that they will undertake this obligation and fulfill that responsibility of protecting their residents’ rights. What are the residents’ rights? Under Florida Statutes, the rights include: 1. The right to civil and religious freedom. 2. The right to private and uncensored communication. 3. The right to have reasonable access to the resident by an entity or individual that provides health, social, legal or other services to residents of nursing homes. 4. The right of a resident to present grievances, i.e., providing a forum where grievances can be presented. 5. The right to organize and participate in resident groups. 6. The right to participate in social, religious, and community activities. 7. The right to examine the results of the most recent federal or state inspection of the facility. 8. The right to manage his or her own financial affairs. 9. The right to be fully informed at the time of admission and throughout of services available in the facility and the related charges for such services. 10. The right to be adequately informed of his or her medical condition and proposed treatment, including the right to refuse medication and treatment. 11. The right to refuse medication or treatment and to be informed of the consequences. 12. The right to receive, in a nursing home, adequate and appropriate healthcare and protective and support services, including social, mental, recreational, therapeutic and rehabilitative services consistent with the resident’s care plan and with established and recognized practice standards. 13. The right to privacy and treatment and in caring for the resident’s personal needs, including the right to confidentiality of their medical records. 14. The right to be treated courteously, fairly, and with the fullest measure of dignity. 15. The right to be free from mental and physical abuse, corporal punishment, extended but involuntary seclusion and to be free from physical and chemical restraints, except those restraints authorized by a physician for a specified and limited period of time or as necessitated by emergency. 16. The right to be transferred or discharged only for medical reasons or for the welfare of other residents. 17. The right to freedom of choice in selecting a personal physician. 18. The right to retain and use personal clothing and possessions. 19. The right to have copies of the facility’s rules and regulations. 20. The right to receive notice before a resident’s room is changed. 21. The right to be informed of the bed reservation policy for hospitalization. 22. For recipients of Medicaid or Medicare, the right to challenge the decision by the facility to discharge or transfer. STATE MONITORING Are nursing homes and assisted living facilities monitored by the state or federal government? Yes, for example, in Florida the Agency for Health Care Administration routinely performs spot inspections of facilities and responds to complaints. Nursing homes and assisted living facilities which are found to not be in compliance and violating their residents’ rights are subjected to varying administrative remedies including moratorium which preclude any new residents from being admitted to the facility, and revocation of the facility’s license. The Agency for Health Care Administration maintains a web site at www.fdhc.state.fl.us/nurhome/index.html which lists the facilities which were found to be in violation during the most recent agency nursing home update. Although this web site provides some information, it is only one picture in time, and choosing a nursing home or assisted living facility should not be based solely on the information contained in this web site. WHAT CAN YOU DO? What can a resident or a resident’s family members do if the resident is subjected to abuse or neglect in a nursing home or assisted living facility? Just because an individual currently resides in either a nursing home or assisted living facility does not mean that they cannot seek redress for any malpractice, abuse or negligence which they suffer. In Florida, the state legislature has decided that enforcement of a resident’s rights should be placed in the hands of the resident and the resident’s family members. Florida’s civil enforcement statute allows a resident or his family, on the resident’s behalf, to sue the facility for neglect and abuse, and any other violation of the resident’s rights. The legislature concluded that society’s interest in promoting residents’ rights would be furthered by allowing residents and their families to police the facility’s activities, and by subjecting the facilities to the expense of damages awarded to any residents whose rights were violated. If a resident suffers from dementia, or has passed away from an unrelated cause, can an action still be brought for a violation of their resident’s rights? Yes. In Florida family members may bring an action on behalf of a resident. Any recovery on behalf of the resident is then placed into trust and applied towards the healthcare and medical needs of the resident. At the time of the resident’s death, the balance would become an asset of the resident’s estate. Similarly, if a resident has passed away, either as a result of the facility’s negligence and abuse, or otherwise, any monies recovered would be for the benefit of the resident’s estate. What are common indications of abuse or neglect? Florida’s statutory scheme is backed up by an administrative code which recognizes several specific areas of possible neglect. Indications would include, but are not limited to, the following: 1. Unexplained bruising. 2. Unexplained weight loss. 3. A resident’s fear for their health and safety. 4. Pressure sores or bedsores. 5. Fall downs. 6. Broken bones. 7. Dehydration. 8. Excessive use of chemical or physical restraints. SUMMARY In summary, long term care facilities, nursing homes and assisted living facilities, play a valued and necessary role in our society. To insure that the residents of these facilities receive the care, treatment and quality of life to which they are entitled, the federal government and various states have passed laws to protect them. These laws provide rights to the residents which the facilities must protect. A violation by the facilities, in most cases, subjects the facility to both administrative repercussions as well as payment of damages to the resident. Family members play a key role in caring for the resident, even after the residents are moved into a nursing home or assisted living facility. Any indications of abuse or neglect can be investigated, and the law affords remedies and redress for that type of behavior. The Law Offices of Sean W. Scott can help you evaluate your particular situation and guide you through the proper course of action.

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