Nursing Home/Elder Care Abuse Asking the Right Questions About Nursing Homes Signs of Nursing Home Neglect Signs of Nursing Home Emotional Abuse Signs and Effects of Malnutrition Federal and New York State Laws Regulating Nursing Homes Nutritional and Dietary Rights Directions for submitting a Complaint to the Department of Health Asking the Right Questions One of the most difficult decisions a family may have to make is to decide whether to put a loved one in the care of a nursing home. Today approximately 1.6 million elderly and disabled Americans are cared for in nearly 17,000 U.S. nursing homes. According to the Health Care Financing Administration (HCFA), which administers Medicare and oversees the state Medicaid programs, nursing homes care for about one in 20 Americans over the age of 65. As percentage of our population over age 65 increases, the percentage of elderly people entering nursing homes will likewise increase.

While we work hard to get the best care possible for our family members, it's often difficult to be sure our loved ones aren't falling prey to problems, such as psychological, emotional, and physical abuse or financial abuse, found in some the nation's senior care facilities. It is believed that most nursing home neglect cases are the result of high staff turnover and poorly skilled staff. Another cause of neglect is under-staffing which results in too few health care aides, who are forced to work long shifts.

One good source of information for finding out about staffing and other issues at your local nursing home is what's called a long-term care ombudsman. The ombudsman visits nursing homes regularly, investigates complaints, advocates for residents, and mediates disputes. There are more than 500 local ombudsman programs across the country. While the ombudsman is not allowed to give recommendations for nursing homes, he or she can provide information about specific facilities.

Some of the questions you should ask include:

• What are the results of the latest ombudsman survey of the faculty?
• How many outstanding complaints are there?
• How many complaints were lodged in the last year?
• What was the nature of the complaint(s)?
• What were the results of recent investigations?
• What is the staff/resident ratio?
• How many residents are in the facility?

Asking these questions does not guarantee a problem-free nursing home experience, but it will increase your chances of finding a facility that is responsible and well-equipped to handle your family member's needs.

HCFA is well aware problem nursing homes exist. At the end of 1999, HCFA Administrator Nancy-AnnDeParle said that nursing homes that fail to protect residents from harm would face immediate penalties. In addition to instructing states to impose sanctions, HCFA has enhanced its consumer Internet resource called Nursing Home Compare, which can be found at www.medicare.gov. Users can search facilities by state, county, or ZIP code. The information allows you to compare the prevalence of health problems, such as bedsores and weight loss, among various nursing homes. The difficult task of finding a quality nursing home faculty is made much easier for today's decision makers because of the wide range of resources now available.

For a printed copy of HCFA's Guide to Choosing a Nursing Home, call the Medicare Choices Help line at 1-800-633-4227. Other organizations to call include the American Association of Retired Persons (AARP) at www.aarp.org or 1-800-424-3410 and the National Citizens Coalition for Nursing Home Reform which can be reached at (202) 332-2275 or via the Web at www.nccnhr.org.

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Signs of Nursing Home Neglect

• Bedsores/Presure Sores
• Dehydration (one sign is a lack of skin elasticity).
• Rapid weight loss
• Poor personal hygiene
• Unsanitary and unclean conditions
• Infections
• Open wounds, cuts, bruises or welts
• Caretaker cannot adequately explain condition
• Elder has sudden change in behavior
• Unexplained injuries
  

Pressure Sores

The incidence of pressure sores is sufficiently high to warrant concern among health care providers. Studies reveal that pressure sores are prevalent in our nation's nursing homes. Pressure sores, also known as decubitus ulcers, usually occur over bony prominences and are graded or staged to classify the severity of the wound.

    Stage 1: A defined area of persistent redness in lightly pigmented skin, or may appear as persistent
                     red, blue or purple hues in darker skinned individuals.
    Stage 2: The ulcer is superficial and presents clinically as an abrasion, blister, or shallow crater.
    Stage 3: The ulcer presents clinically as a deep crater with or without undermining of adjacent tissue.
    Stage 4: Extensive destruction, tissue necrosis, or damage to muscle, bone or supporting structures.

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Signs of Emotional Abuse

• Emotionally upset or agitated
• Extremely withdrawn and non-communicative
• Unusual behavior (sucking, biting, rocking)

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Signs of Malnutrition

Contrary to what some may believe, malnutrition and dehydration are commonplace in nursing homes and in some cases, the sole cause of death. This is often due to understaffing and the negligent prescribing of appetite suppressing drugs . The following is a list of Physical Signs of Malnutrition:

• Hair - Dry, dull, no shine, hair loss
• Eyes - Pale mucus membranes
• Lips - Red, swelling, fissures or scars at the corners
• Gums - Red, swollen, spongy
• Mouth - Dry, scaling, angular fissures
• Tongue - Red or purple, smooth, inflamed
• Face - Lack of color, hallowed cheeks, scaling of skin
• Nails - Fragile or spoon shaped
• Skin- Slow wound healing, bruising, lack of fat, dry, flaky or edema
• GI - Diarrhea, anorexia
• Muscles - Weakness, wasting, peripheral neuropathy
• Nervous System - Listlessness, loss of vibratory sense

Effects of Malnutrition

• Loss of muscle mass
• General fatigue and weakness
• Lack of Initiative
• Low Lab values of protein status
• Impaired immune response and frequent infections
• Apathy
• Depression
• Impaired organ function
• Change of behavior and personality
• Complete exhaustion
• Death

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How to Submit a Complaint to the Department of Health

You should submit your complaint to the New York State Department of Health as soon as possible. Be as detailed as possible. Make sure to include the name of the nursing home, the name and date of birth of the resident, names of any witnesses or caregivers that witnessed the incident you are complaining about, your contact information, the date of the incident, your attorney's contact information, and all injuries you claim occurred. In the event you do not know the exact date, include an approximate date span, i.e. during the month of August.

In the event the nursing home failed to contact you after the incident or did so in an untimely manner, indicate how you learned of the incident. If someone did contact you about the incident, include in your complaint who it was that contacted you, if you know, and what the person said. Also, include what if any steps were taken as a result of the incident, for example, the resident was taken to the hospital, no medical attention was given, or you had to force the nursing home to seek medical attention for the resident. If medical attention was sought, give the Department of Health the medical facility or physician's name and the date(s) the resident received medical attention.

Always submit the complaint in writing and keep a copy. Once you have retained an attorney, provide him/her with a copy of the complaint and any correspondence you receive from the Department of Health.

Submit a complaint to:

New York State Department of Health
Centralized Complaint Intake Program
161 Delaware Avenue
Delmar, New York 12054

You can also call the Department of Health's Hotline at: 1-888-201-4563

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Federal and New York State Laws Regulating Nursing Homes

Nursing homes who receive federal funds are required to comply with federal laws that specify that residents receive a high quality of care. In response to reports of widespread neglect and abuse in nursing homes in the 1980s, the Congress, in 1987, enacted legislation to reform nursing home regulations and require nursing homes participating in the Medicare and Medicaid programs to comply with certain requirements for quality of care. The legislation, included in the Omnibus Budget Reconciliation Act of 1987 (OBRA 1987), also known as the Nursing Home Reform Act, specifies that a nursing home "must 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..."

Care Requirements

To participate in the Medicare and Medicaid programs, nursing homes must be in compliance with the federal requirements for long term care as prescribed in the U.S. Code of Federal Regulation (42 CFR Part 483). Under the regulations, the nursing home must:

• Provide appropriate treatment and services to incontinent residents to restore as much normal bladder functioning as possible and prevent urinary tract infections (42 CFR ¤ 483.25).
• Ensure that the resident receives adequate supervision and assistive devices to prevent accidents (42 CFR § 483.25).
• Ensure that a resident maintains acceptable parameters of nutritional status, such as body weight and protein level (42 CFR § 483.25).
• Provide each resident with sufficient fluid intake to maintain proper hydration and health (42 CFR § 483.25).
• Have sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care (42 CFR § 483.30).
• Conduct initially (no later than 14 days after admission) and periodically (after a significant change in the resident's physical or mental condition and, in no case, less than once every 12 months) a comprehensive, accurate, standardized, reproducible assessment of each resident's functional capacity (42 CFR § 483.20).
• Develop a comprehensive care plan for each resident that includes measurable objectives and timetables to meet a resident's medical, nursing, and mental and psychosocial needs that are identified in the comprehensive assessment. The care plan must be developed within 7 days after completion of the comprehensive assessment and describe the services that are to be furnished. Also, the care plan must be periodically reviewed and revised by a team of qualified persons after each assessment (42 CFR § 483.20).
• Prevent the deterioration of a resident' ability to bathe, dress, groom, transfer and ambulate, toilet, eat, and to use speech, language or other functional communication systems (42 CFR § 483.25).
• Provide, if a resident is unable to carry out activities of daily living, the necessary services to maintain good nutrition, grooming, and personal and oral hygiene (42 CFR § 483.25).
• Ensure that residents receive proper treatment and assistive devices to maintain vision and hearing abilities (42 CFR § 483.25).
• Ensure that residents are free of any significant medication errors (42 CFR § 483.15).
• Care for its residents in a manner and in an environment that promotes maintenance or enhancement of each resident's quality of life (42 CFR § 483.15).
• Promote care for residents in a manner and in an environment that maintains or enhances each resident's dignity and respect in full recognition of his or her individuality (42 CFR § 483.15).
• Ensure that the resident has the right to choose activities, schedules, and health care consistent with his or her interests, assessments and plan of care (42 CFR § 483.15).
• Ensure that the medical care of each resident is supervised by a physician and must provide or arrange for the provision of physician services 24 hours a day, in case of an emergency(42 CFR § 483.40).
• Provide pharmaceutical services (including procedures that assure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals) to meet the needs of each resident (42 CFR § 483.60).
• Be administered in a manner that enable it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident (42 CFR § 483.75).
• Maintain clinical records on each resident in accordance with accepted professional standards and practices that are complete, accurately documented, readily accessible, and systematically organized (42 CFR § 483.75).

In addition to federal laws regulating the quality of care in nursing homes, New York State has enacted laws as well. State law must be at least as stringent as the federal laws. In some instances New York State Law is tougher than federal law. In short, a nursing home must conduct an initial comprehensive assessment of each resident and periodic reassessments quarterly or as needed if there is a significant change in the condition of the resident. From the assessment, a plan of care must be developed that specifies the necessary care that must be provided. The facility must have sufficient nursing personnel to provide all the necessary care to each resident in accordance with the assessment and plan of care. The nursing home is required to document the assessments, plans of care, and the care provided, in the resident's clinical record.

With both federal and state laws regulating nursing homes, almost every aspect of a nursing home's operation and resident care are covered under the regulations. Thus, when a nursing home willfully does not provide required care that results in the deterioration and/or death of the resident, the nursing home may have violated federal and state laws. If the resident's care was being reimbursed by Medicare or Medicaid, then the nursing home may have submitted false claims to the government.

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Your Nutritional and Dietary Rights

According to law, (42 CFR § 483.25) the following nutritional and dietary rights must be met for residents:

Dietary Services:

The facility must provide each resident with a nourishing, palatable, well balanced diet that meets the daily nutritional and special dietary needs of each resident. Substitutes must be offered of similar nutritive value to residents who refuse food service. Therapeutic diets must be prescribed by the attending physician when needed. Sufficient fluids must be given to maintain proper hydration and health

Frequency of Meals
Each resident receives and the facility provides at least three meals daily, at regular times comparable to normal mealtimes in the community. There must be no more than 14 hours between a substantial evening meal and breakfast the following day, except as provided in (4) below. The facility must offer snacks at bedtime daily. When a nourishing snack is provided at bedtime, up to 16 hours may elapse between a substantial evening meal and breakfast the following day if a resident group agrees to this meal span, and a nourishing snack is served.

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Assisted Living Facilities

New Legislation-The Assisted Living Reform Act

In August 2004, the State's Legislature passed the " Assisted Living Reform Act" which will add Article 46-B to the Public Health Law for New York. This measure creates a true assisted living law for the first time in New York. The passage was the result of a five year effort by Governor George Pataki, who had originally submitted the proposed Act to the Legislature in 1999. The Act took effect February 23, 2005. Among its many provisions, it:

• Defines assisted living and assisted living residences as separate from adult homes.
• Requires look-a- likes to become licensed or face serious penalties (class A misdemeanor, plus civil penalties), and provides incentives if they apply for licensure quickly.
• Requires full disclosure to consumers and their families interested in locating to an assisted living facility of at least nine points of information, including ownership by the facility operator (in excess of 10%) of any company which provides goods or services to residents as well as, ownership by any such company in the facility.
• Establishes a 16-point residents' bill of rights.
• Creates a permanent, ongoing task force to deal with the many issues involved in assisted living, including the acre of special population, the development of appropriate patient assessment instruments, regulations, and other matters

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