What are Nursing Home Abuse, Neglect, Resident Rights, and Negligence?

What is Considered Nursing Home Abuse and Neglect? 

Every nursing home resident in the country has the right to be free from abuse, neglect, misappropriation of resident property, and exploitation. This includes but is not limited to freedom from corporal punishment, involuntary seclusion and any physical or chemical restraint not required to treat the resident’s medical symptoms.  

The law prohibits the nursing home and its staff from using verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion. 

Nursing Home Abuse 

Abuse is defined as “the deprivation by an individual, including a caretaker, of goods or services that are necessary to attain or maintain physical, mental, and psychosocial well-being. 42 CFR 483.5

Nursing home abuse does not require that caregivers desire to harm a resident. It simply means that the nursing home or a nursing home caregiver deprived a resident of some service that is necessary to maintain their health and well-being.

Nursing Home Neglect 

Neglect means “the failure of the facility, its employees or service providers to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish or emotional distress.”

42 CFR 483.5

Like abuse, neglect does not require intent or ill will. Rather, neglect is simply the nursing home’s failure to provide services that the resident needs. 

What are Nursing Home Resident Rights Laws? 

Every nursing home resident has rights that are guaranteed by federal law, 42 CFR 483.10. These rights include the right to: 

  • To a dignified existence
  • To self-determination
  • To communicate with and access to persons and services outside the nursing home
  • To equal access to quality care regardless of who is paying for the care (Medicare, Medicaid, or private pay)
  • To exercise his or her rights without interference
  • To be free of interference or retaliation for exercising their rights
  • To be informed of and participate in their care
  • To participate in creating their care plan 
  • To be informed, in advance, of any changes in their care
  • To receive items and services listed in the care plan 
  • To see the care plan and sign off on it 
  • To discontinue any treatment or refuse to participate in experimental research 
  • To self-administer medications
  • To choose their attending physician 
  • To be informed of the name, specialty, and way to contact any physician who sees the resident 
  • To respect and dignity
  • To be free from physical restraints
  • To be free from chemical restraints
  • To retain and use personal possessions
  • To receive nursing service with reasonable accommodation 
  • To room with their spouse if married
  • To choose their roommate 
  • To receive written notice of any room change
  • To refuse transfer to another room 
  • To choose activities, schedules, healthcare providers, and healthcare services
  • To make choices about aspects of their life that are significant to them
  • To interact with members of the community 
  • To receive visitors of their choosing
  • To immediate access to any representative of the state and representative of the office of the state long term care ombudsman
  • To access to the resident’s individual physician 
  • To access to any representative of the agency responsible for individuals with a mental disorder
  • To immediate access to relatives of the resident
  • To see the nursing home’s written policies and procedures regarding visitation rights of residents 
  • To organize and participate in resident groups in the facility 
  • To have family meeting space provided (if the facility has such a space)
  • To a designated staff person approved by the resident or family who is responsible for providing assistance at group meetings 
  • To have their grievances and complaints acted on promptly (the nursing home must demonstrate their response and rationale for such a response) 
  • To participate in social, religious, and community activities
  • To refuse to perform services for the nursing home 
  • To manage his or her financial affairs 
  • To be informed of their rights and of all rules and regulations
  • To access personal and medical records 
  • To obtain a copy of their medical records
  • To know and be provided a way to submit a complaint with the state survey agency 
  • To reasonable access to a telephone and a place where calls can be made in privacy 
  • To communicate, including access to the internet, stationary, postage, pens/pencils, and ability to mail 
  • To send and receive mail 
  • To reasonable access to and privacy in their use of electronic communications
  • To examine the results of the most recent state survey 
  • To have the nursing home comply with the resident’s advanced directives
  • To be notified of any accidents causing injury and to any significant change in the resident’s medical or mental status
  • To privacy and confidentiality 
  • To a safe, clean, comfortable, and homelike environment 
  • To housekeeping and maintenance services necessary to maintain a sanitary, orderly, and comfortable interior
  • To voice grievances against the facility without reprisal
  • To be able to communicate with federal, state, and local officials including state surveyors without interference or discrimination 

If a nursing home resident has a resident sponsor, often called a power of attorney, that person has the right to enforce these nursing home rights for the resident. The nursing home must treat the decisions of the resident’s sponsor as if those decisions were made by the resident. 

What is Nursing Home Negligence? 

Negligence is a legal concept that simply means “reasonableness.” If a nursing home or one of its caregivers does something that a reasonable nursing home caregiver would not have done, that is considered negligence. For example, if a resident requires two people to assist them out of bed and only one caregiver attempts to move the resident causing the resident to fall, that is considered negligence. While it may not break any specific laws, it is something that a reasonable caregiver would not have done. 

Similarly, if a reasonable caregiver would have done something and a nursing home caregiver does not do that thing, that is also negligence. For example, if a resident is showing signs of an infection, a reasonable caregiver would contact the resident’s doctor and family. If the caregiver does not contact the doctor or family when a reasonable caregiver would, that is negligence. 

Violations of resident rights, abuse, and neglect are all evidence of negligence. However, a nursing home can still be negligent even if the nursing home did not abuse or neglect the resident or violate their rights. 

What Can I Do If My Loved One’s Rights Were Violated or They Were A Victim of Abuse, Neglect, or Negligence? 

If a nursing home resident is abused or neglected, their rights were violated, or the nursing home was negligent, there are several immediate options. 

  • Install cameras: Cameras located in the resident’s rooms are an option that all residents and their families should consider as soon as the resident moves into the nursing home or assisted living facility. As we all know, people behave differently when they know they are being watched. Cameras keep nursing staff honest. Cameras also are often essential when nursing staff don’t do what they are supposed to do. We have had several cases where the records say one thing happened and the video shows something completely different. In those instances, the video was essential to prove what actually happened. Before installing cameras, you should consult your local laws on video surveillance. Some states do not permit cameras in rooms without additional measures being taken, such as posting signs on the door containing specific language or other measures being taken. 
  • Request and record a care conference: Every resident has the right to participate in their own care and to make their grievances heard. There are times where nursing management is unaware of the nursing staff’s actions. Bringing this information before the care conference can be helpful to get ahead of a situation before the situation gets worse. You should ask if you can record the care conference. If the nursing management refuses to permit you to record the care conference, that should give you some pause. Unless the nursing home is intending to promise to do something they don’t intend to actually do or are afraid they will say something incriminating, there should be no reluctance to having the conference recorded. 
  • Remove the resident from the nursing home: If the resident is currently at the nursing home, you may want to consider removing them from the nursing home and place them somewhere else. This can be more difficult than it sounds, and sometimes there is extensive paperwork involved if you attempt to move your loved one directly from one nursing home to another. Oftentimes, the most effective way to have a nursing home resident moved to a different nursing home is by having them admitted to the hospital. From that point, you can work with the hospital’s social service and discharge staff to have the resident placed in a new facility. 
  • Call 911: If you feel that your loved one is in danger, call 911. Nursing homes and their staff are often reluctant to send residents to the hospital. There are a number of reasons for this, but one of the reasons is that part of how nursing homes are graded is based on how many of their residents are readmitted to the hospital. This creates an incentive to keep residents at the nursing home when it is no longer safe and they require hospital care. 
  • Report to the State Department of Health: The state department of health has investigators who conduct surveys of nursing homes. These include investigations of abuse and neglect. The state also has a representative referred to as an ombudsman. An ombudsman is a person who addresses the concerns of residents and families in a variety of long-term care settings, including nursing homes and assisted living facilities. Nursing homes are required to provide the contact information for the state department of health and ombudsman. This information can also usually be accessed online. 
  • Report to Area Agencies on Aging: Many areas have an area department on aging. These agencies coordinate services and support for older individuals in the community. 
  • Contact the Media: One of the most effective ways to change behavior is by making bad care public. News outlets will often cover stories about elder abuse because of its reprehensible nature. If you do have a lawyer, it is wise to speak to your lawyer before contacting the media to make sure that you are not doing anything to harm your interests. 
  • Contact a lawyer: Sometimes a lawyer is your only real option for change. This is especially true if serious injuries or death has occurred as a result of suspected abuse, neglect, or negligence. 

Disclaimer: This information is provided for informational purposes only. Nothing in this article should be construed as providing legal advice or the creation of an attorney client relationship. Laws are updated frequently and change from state to state. If you desire legal advice, you can contact Michael Hill Trial Law at www.protectseniors.com, send an email to info@protectseniors.com, call (800) 659-2712 to begin an investigation or contact another attorney.