Nursing Home Law and Litigation

Nursing homes have been defined as private institutions that furnish shelter, food and care for sick, aged, or infirm persons. They are not strictly hospitals, in that they do not necessarily render actual medical treatment, but they may be considered hospitals for certain purposes. Nursing home residents are protected by both state and federal regulations.

I. Legal Rights of Nursing Home Residents under Federal Law

The rights of nursing home patients are protected under the federal law known as the Nursing Home Reform Act (NHRA). The NHRA, part of the Omnibus Budget Reconciliation Act of 1987, is codified at 42 U.S.C. §§1395i-3 and 1396r. The law requires nursing homes to promote and protect the rights of each resident and places a strong emphasis on individual dignity and self-determination. Nursing homes must meet residents’ rights requirements to participate in the Medicare and Medicaid programs.

The rights set forth in the NHRA are more specifically described in the Code of Federal Regulations (“CFR”). 42 CFR §483.12 requires a nursing home to “develop and implement written policies and procedures that prohibit mistreatment, neglect and abuse of residents….” 42 CFR §483.13 prohibits the use of restraints for purposes of discipline or convenience, and forbids physical and other abuses, corporal punishment and involuntary seclusion. 42 CFR §483.15(a) requires that the nursing home provide “[a] safe, clean, comfortable, and homelike environment…” Finally, 42 CFR §483.25 requires that each nursing home provide services and activities to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident in accordance with a written plan of care which . . . is initially prepared, with participation to the extent practicable of the resident, the resident’s family, or legal representative.

In general, the NHRA and regulations provide the following rights to residents of nursing homes:

  1. Rights to Self-Determination
  2. Personal and Privacy Rights
  3. Rights to Be Free of Abuse and Restraints
  4. Rights to Information
  5. Rights to Visits
  6. Transfer and Discharge Rights
  7. Protection of Personal Funds
  8. Protection Against Medicaid Discrimination.

A resident in a nursing facility is entitled to receive written notice of the rights and services to which he or she is entitled during his/her stay in the facility. This notice must be give prior to or upon admission, and periodically throughout the resident’s stay, in a language the resident understands. The resident must acknowledge his or her receipt of such notice in writing.

II. Bill of Rights for New Jersey Nursing Home Residents

New Jersey enacted a Bill of Rights for nursing home residents in 1976. The New Jersey Nursing Home Bill of Rights is codified by statute in N.J.S.A. 30:13-1 et seq., and in the administrative code atN.J.A.C. 8:39-4.1. The rights established by the New Jersey law were created to protect nursing home patients from neglect and abuse, and may, in some cases, form a basis for a cause of action against nursing homes where residents are injured due to poor care, neglect and/or abuse. The law not only delineates the rights of nursing home residents, but also establishes responsibilities for nursing homes. Importantly, the law shifts the costs and attorneys’ fees to the nursing home if the facility violates the law. N.J.S.A. 30:13-4.2.

Some of the more important rights of nursing home residents in New Jersey are summarized as follows:

  1. The right to manage his/her own affairs
  2. The right to privacy
  3. The right to retain the services of his/her own personal physician
  4. The right to obtain from his/her physician understandable information regarding his/her medical condition
  5. The right to refuse treatment
  6. The right to participate in the planning of his/her total care and treatment
  7. The right to confidentiality and privacy concerning his/her treatment and medical condition
  8. The right to unrestricted communication and visitation
  9. The right to present grievances without fear of discharge or reprisal
  10. The right to a safe and decent living environment
  11. The right to considerate and respectful care
  12. The right to not be deprived of any constitutional, civil or legal right
  13. The right to be discharged or transferred by the nursing home only for certain permissible reasons set forth in the statute.

In addition to delineating the rights of a nursing home resident, New Jersey has also codified some of the responsibilities of nursing homes in its Nursing Home Bill of Rights. Some of the more important responsibilities imposed in New Jersey can be summarized as follows:

  1. Not admitting more residents than the facility can safely and adequately care for
  2. Not using physical restraints, unless the facility is ordered to do so by the attending physician to protect the resident or others from injury
  3. Not using drugs or medication for punishment or for any convenient reason that interferes with the resident’s rehabilitation or normal living activities
  4. Allowing visitations from legal service programs or other assistance type groups
  5. Complying with all applicable state and federal laws, rules and regulations.

Any violation of New Jersey’s Nursing Home Bill of Rights gives rise to a cause of action where a successful litigant can recover treble (triple) damages, punitive damages, reasonable attorneys’ fees and costs.

While many states and the federal government have gone to great lengths to protect the rights of nursing home residents, unfortunately, patient neglect and abuses continue to occur. When this happens, the resident and his/her family should consider investigating the matter and/or possible legal action. Attorneys at the Law Office of Donald D. Vanarelli can help protect your rights. Your case will be expertly and expediently handled by our team, which is knowledgeable about federal and state nursing home laws. Our reputation is built on unparalleled compassion, strategy and performance.

III. Legal Rights of Nursing Home Residents

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A Nursing Home Cannot Force a Resident’s Family or Friends to Guarantee the Payment of Nursing Home Costs.

Admission to a nursing home is a traumatic event to all concerned: the incoming resident, family members and friends. Nursing homes sometimes take advantage of the situation by requiring a friend or family member to co-sign the admission contract and thereby assume personal liability for costs and expenses. A nursing home may attempt to use such a financial guarantee to collect thousands of dollars from a friend or family member if, for example, a resident’s Medicaid application is mishandled or denied.

In 1987, Congress banned nursing home guarantees. In the Nursing Home Reform Law of 1987, Congress stated that a “nursing facility must … not require payment … as a condition or admission (or expedited admission) to, or continued stay in, the facility”. 42 U.S.C. §§1395i-3(c)(5)(A)(ii) and 1396(c)(5)(A)(ii).

Despite the law, some nursing homes have continued to seek and obtain financial guarantees from residents’ family members and friends, ignoring the federal prohibition. By and large, those guarantees are illegal and/or unenforceable.

IV. Legal Rights of Nursing Home Residents

Legal Protections Against the Involuntary Discharge of Nursing Home Residents for Non-Payment.

A nursing home resident may face attempted involuntary discharge from the facility for the non-payment of nursing home bills. Attempted discharges based upon non-payment usually arise either when a nursing home resident is awaiting an initial determination of eligibility for Medicaid benefits, or when a resident has been denied initially for Medicaid, has appealed and is awaiting a final agency determination. There are laws protecting residents against involuntary discharges based upon non-payment, and certain measures can be taken to prevent attempted involuntary discharges by nursing facilities.

Pursuant to N.J.A.C. 10:63-1.10(e), there are only four reasons under New Jersey law which can justify the involuntary discharge of a resident. The first is if the discharge is required by medical necessity. The second is if the discharge is necessary to protect the physical welfare or safety of the resident, or of other residents. The third is if the resident has failed, after notice, to pay the nursing home from his or her available income. The fourth is if the nursing home is required to do so by the New Jersey State Department of Health due to licensure action or if the nursing home has been suspended or terminated as a Medicaid provider.

Nursing homes attempt to justify discharges for non-payment based upon the third reason set forth above, i.e., failure to pay the nursing home bill after notice. However, discharges for non-payment are rarely legally justified under that rationale because, under state law, once a Medicaid applicant has provided all of his or her income to the nursing home, the proposed involuntary discharge is barred even if the nursing home fees are not paid in full. N.J.A.C. 10:63-1.10(e). For example, if a nursing home resident who receives only Social Security retirement benefits and is awaiting a Medicaid eligibility determination pays all of his or her income to the nursing home, the resident cannot be discharged even if the majority of the monthly nursing home bill remains unpaid. N.J.A.C. 10:63-1.10(e). Courts and hearing officials in many jurisdictions have so held. In that regard, in In re R.S., California Transfer/Discharge Appeal No. 97-0348 (Mar. 4, 1996), a hearing officer denied an involuntary transfer even though the resident owed over $23,000 and had filed her appeal of a Medicaid denial just one day prior to the transfer/discharge hearing. The hearing officer noted that the issue of non-payment could not be determined until the Medicaid program had made its ultimate decision. Similarly, in In re G.A., Indiana Transfer/Discharge Appeal No. IVT 92-22 (June 18, 1992), an Indiana hearing officer denied a proposed transfer upon a finding that “[a]ll appeals to obtain Medicaid for the period of non-payment have not been completed.”

Further, a nursing home must give a resident at least 30 days’ advance notice of any proposed involuntary discharge. 42 C.F.R. § 483.12(a)(4) and (5), N.J.S.A. 30:13-6 and N.J.A.C. 10:63-1.10(g)(2). If the nursing home resident requests a hearing, then the proposed discharge is stayed pending the final agency decision. N.J.A.C. 10:63-1.10 (g)(2).

The involuntary transfer of a Medicaid recipient, including “an individual who had entered the facility as non-Medicaid and is awaiting resolution of Medicaid eligibility,” N.J.A.C. 10:63-1.10(d), is permitted only “when adequate alternative placement . . . is available.” N.J.A.C. 10:63-1.10(e). In order to determine whether “adequate alternative placement” is available, a facility must prepare a discharge plan before involuntarily discharging a resident, as required in 42 C.F.R. § 483.12(a)(7) and N.J.A.C.10:63-1.10(h). The discharge plan must take the resident’s medical needs into account. Further, any discharge plan must include “involvement of the recipient, family or authorized representative in the placement process with recognition of their choices”, as required by N.J.A.C. 10:63-1.10(h)(2)(iii). In addition, the Nursing Home Reform Act requires that a nursing facility “must provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility.” 42 U.S.C. § § 1395I-3(c)(2)(C), 1396r(c)(2)(C); 42 C.F.R. § 483.12(a)(7). Courts and hearing officers have denied proposed involuntary discharges when the facility failed to prepare an adequate care plan. In re C.L., California Transfer/Discharge Appeal No. 95-0096 (Apr. 12, 1994)).

Of course, nursing homes sometimes ignore their responsibilities under state law. In that event, the nursing home resident or his or her family members must seek relief in the New Jersey Superior Court to restrain the nursing home from initiating an illegal discharge.

V. Legal Rights of Nursing Home Residents

Federal and State Safeguards Against the Involuntary Discharge or Transfer of a Nursing Home Resident based upon a Claim by the Nursing Home that the Resident is a Danger to Himself or Others.

The federal Nursing Home Reform Act (NHRA) limits a facility’s ability to transfer or discharge a resident against his or her will. Under the NHRA, a nursing facility can conduct an involuntary transfer or discharge in only six circumstances. One of the permitted circumstances occurs when a nursing facility claims that a resident is a danger to himself or others.

It is settled law that each nursing facility resident has the right not to be transferred or discharged involuntarily unless substantive and due process criteria have been met. Matter of Involuntary Discharge or Transfer of J. S. By Hall, 512 N.W.2d 604, 609 (Minn. App. 1994), 42 C.F.R. § 483.12. Among the procedural requirements of a facility intending to involuntarily discharge a resident is the requirement of proper 30-days notice of the intended discharge to the resident. N.J.S.A. 8:39-4.1(a)(32). This notice is required to be in writing and must include (1) the reason for the threatened discharge; (2) the date on which the discharge is to occur; and (3) the location to which the resident is to be moved. 42 U.S.C. § § 1395I-3(c)(2)(B)(i)(I); 1396r(c)(2)(B)(i)(I); 42 C.F.R. § 483.12(a)(6)(i)-(iii); 42 C.F.R. § 483.12(a)(4) and (6); N.J.S.A. 30:13-6; and, N.J.A.C. 10:63-1.10(g)(2). Failure to provide proper notice of discharge should result in a denial of the proposed transfer/discharge.

The involuntary transfer of a resident is permitted only “when adequate alternative placement . . . is available.” 42 C.F.R. § 483.20(l)(3); N.J.A.C. 10:63-1.10(e). In order to determine whether “adequate alternative placement” is available, a facility must prepare a discharge plan before involuntarily discharging a resident, as required in 42 C.F.R. § 483.12(a)(7) and N.J.A.C. 10:63-1.10(h). The discharge plan must take the resident’s medical needs into account. Further, any discharge plan must include “involvement of the recipient, family or authorized representative in the placement process with recognition of their choices”, as required by N.J.A.C. 10:63-1.10(h)(2)(iii). In addition, the Nursing Home Reform Act requires that a nursing facility “must provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility.” 42 U.S.C. § § 1395I-3(c)(2)(C), 1396r(c)(2)(C); 42 C.F.R. § 483.12(a)(7).

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Nursing facilities often attempt to rely upon a resident’s alleged failure to follow the facility’s rules and regulations as justification for an involuntary discharge. However, it is settled law that the violation of a facility’s rules and regulations, alone, does not warrant the involuntary discharge of the resident. 42U.S.C. § § 1395i-3(c)(2)(A)(iii), (iv); 42 U.S.C. § 1396r(c)(2)(A)(iii); 42 C.F.R. § 483.12(a)(2)(iii), (iv). Rather, a resident may be discharged only for the reasons set forth in governing regulations. As set forth in N.J.A.C. 8:39-4.1(a)(31):

A facility is not permitted under law to ignore a resident’s psychological or other needs and then address inevitably resulting behavioral problems by simply discharging the resident. Instead, the facility “must provide the services necessary for a resident to attain or maintain the highest practicable level of functioning… If …a resident’s assessment reveals difficulty with mental or psychosocial adjustment, the facility must ensure that he receives the treatment necessary to correct the assessed problem.” E. Carlson, Long-Term Care Advocacy § 2.15 (Matthew Bender & Co., Inc. 2001) (citations omitted). Simply stated, it is clear that “[a] nursing facility has an expansive obligation to treat or ameliorate any behavioral problems presented by residents.” Id..

It is equally clear that even the most disruptive or volatile behavior generally does not justify an involuntary discharge. Id. It is only when the behavior is a danger to the welfare or safety of others that such behavior may warrant involuntary discharge. N.J.A.C. 10:63-1.10(e)(2). The two aforecited principles combine to render many threatened involuntary discharges of nursing home residents unjustified. When considering an involuntary discharge on the basis that the resident has injured others, “[t]he severity of the injuries generally is the determinative factor.”

It is not uncommon for the elderly to act out feelings of depression and isolation in a nursing facility setting. However, a nursing facility must address a resident’s behavioral problems through medication, counseling and/or behavior modification, and exhaust those options first, before seeking to discharge the resident. See, In re J.C., supra, California Transfer/Discharge Appeal No. 02-0042 (Aug. 3, 1993).

Thus, if the resident’s behavior does not rise to the level of a genuine threat to the welfare or safety of others, and the facility has failed to exhaust available avenues to treat his or her behavioral problems, the facility cannot prove that the threatened discharge of the resident is warranted.

VI. Nursing Home Litigation Based on Nursing Home Negligence, Abuse and Neglect

Nursing home negligence, abuse and neglect occurs when a care facility causes injury to a resident because of improper care. Nursing home negligence typically includes the failure to provide basic necessities, failure to protect the resident from health and safety hazards or failure to provide appropriate care. Negligence can result in injuries such as falls, broken hips, bed sores, malnutrition, dehydration, improper wound care and other injuries, which may result in severe medical complications and even death.

Physical abuse includes unexplained injuries such as bruises, fractures, open wounds, sprains, dislocations, unexplained internal bleeding, and the like. Improper medical care can result in bedsores, concussions, strokes, and other injuries. Medication, both over-and under-dosing, can also be considered physical abuse. Any kind of hitting, slapping, kicking or similar mistreatment is considered to be physical abuse as well.

Verbal, mental, and emotional abuse include all acts which inflict anguish, pain, or distress through verbal or non-verbal acts. Psychological abuse includes but is not limited to verbal assaults, threats, insults, intimidation, humiliation and harassment. Signs and symptoms of emotional abuse can include being emotionally upset or agitated, or regressive behavior such as sucking, biting, or rocking. The victim may also become withdrawn, non-communicative or non-responsive.

Financial exploitation is defined as the illegal or improper use of an elderly person’s funds, property or assets. This includes cashing an elderly person’s checks without permission, forging a signature, misusing or stealing another person’s money or possessions, coercing or deceiving an older person into signing documents, the improper use of the power of conservatorship, guardianship, or power of attorney, and similar improper acts. Signs of financial irregularities may include sudden changes in bank account or banking practices; abrupt changes in a will or other financial documents, the unexplained disappearance of funds or valuable possessions, unpaid bills despite adequate funds, the provision of unnecessary services, the discovery of forged signatures, a lack of care despite the availability of resources, or an elder’s report of financial exploitation.

Nursing home negligence, abuse and neglect appear to be on the rise as the number of nursing home residents steadily increase due to our rapidly aging population. When your loved one has been the victim of nursing home negligence, abuse and neglect, the team of attorneys and other specialists at the Law Office of Donald D. Vanarelli can advise you of your loved one’s legal rights, tell you what remedies might be available, and discuss the appropriate actions to take. We have successfully litigated nursing home cases in state courts and in administrative agencies.

 

Nursing Home Law and Litigation Continued >