Your loved one who lives in a nursing home receives protection from elder abuse by both federal and state laws. Not only is nursing home abuse strictly prohibited in all of its forms, but the appropriate state regulatory authority must receive a report of any abuse discovered. The timelines for these reports are extremely tight and strict. Nursing homes can receive punishment not only for the abuse but also for their failure to report the allegations to the state promptly.
Elder abuse is a widespread and frightening problem throughout the United States. A significant percentage of complaints reported to various nursing home ombudsman programs involved abuse. Many nursing home residents suffer from dementia, and nearly half of the people who have this condition are abuse victims. Not only are residents at risk of abuse from nursing home staff, but they also fall victim to physical and sexual abuse from other residents.
Anyone who suffers abuse or neglect at a facility deserves to hold that facility liable for any harm caused. Families should discuss the matter with a nursing home abuse and neglect lawyer as soon as possible.
Many Cases of Abuse Go Unreported
The scope of the problem is not even fully known because many cases of abuse go unreported, notwithstanding the laws that we will discuss below.
Reasons why abuse may go unreported included:
- The abused seniors do not have the verbal or cognitive ability to speak up about their experiences.
- Families do not know about their rights and where they should report abuse.
- Nursing homes do not follow their reporting obligations to let the state know about the abuse allegation.
This article focuses on the last point; the nursing home’s legal requirement to inform the state of any alleged abuse.
Nursing Home Abuse Is Broadly Defined
First, families should know that nursing home abuse is very broadly defined. Of course, many families think of physical and sexual abuse as things that are against the law. When it comes to mandatory abuse reporting, neglect is also part of this very broad definition. If you notice that your loved one is not receiving the care that they need and the help with their activities of daily life, this may constitute reportable abuse or neglect.
Federal regulations define neglect as “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.” Many different actions can fall under the umbrella of nursing home neglect, and residents can suffer a wide range of injuries and preventable health conditions as a result. Even if what happened to your loved one does not seem like intentional abuse, it might be neglect, and you should not hesitate to report it.
Federal Regulations Require Immediate Reporting of Abuse Allegations
The reasons for these abuse reporting requirements are obvious. You cannot trust a nursing home to investigate allegations about itself. A finding that nursing home abuse occurred would make the facility legally liable if the resident suffered any injury.
In other words, abuse lawsuits cost nursing homes money, and they have every incentive to avoid being sued. Thus, you cannot trust them to investigate their own abuse cases. There is a very real possibility that the nursing home will not do the right thing and thoroughly look into these abuse allegations.
Promptly Report Abuse to the State
You need to bring the state into the investigation immediately because:
- You cannot trust the nursing home to perform an investigation alone or quickly. After all, this is the same facility where the alleged abuse occurred. The facility seemingly has everything to hide.
- If the abuse is ongoing, there is a serious question about the resident’s physical and emotional well-being and safety. An immediate investigation may stop active abuse and protect the health and safety of the elder.
- Nursing home abuse is obviously against state and federal law. A report will begin the process of a regulatory investigation. If the nursing home has broken any laws, authorities may caution or fine the facility. Egregious cases of nursing home abuse can result in severe fines for nursing homes and possible suspension or removal from the Medicaid program.
As you can see, with everything at stake, there are compelling reasons to bring regulators who have real enforcement power into the picture sooner rather than later. Otherwise, your loved one’s health and life can be in jeopardy. Nursing homes need to prominently post easily read sheets that detail where to report nursing home abuse.
States Have Different Laws Within the Federal Framework
First, let us take a look at the overarching federal regulation about nursing home abuse reporting. While states make their own laws and can directly receive abuse allegations, federal government regulations set the framework for nursing home operations because the federal government provides the Medicaid funding that pays for many residents’ care.
The Code of Federal Regulations, specifically 42 CFR 483.12, provides the guidelines regarding the reporting of abuse to federal authorities under the heading “Freedom from Abuse and Neglect.”
The rule first states that nursing home residents have the right to be free from the following types of abuse:
- Abuse
- Neglect
- Financial exploitation
Verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion all fall under the umbrella of prohibited abuse.
Beyond these specifics, nursing homes have many abuse prevention obligations. They must carefully screen their employees, not hiring those convicted of certain offenses. The facilities must also properly train their employees and maintain policies and procedures to prevent abuse.
The Federal Requirement for Reporting Nursing Home Neglect or Abuse
Of particular importance here is the requirement that nursing homes immediately report allegations that involve abuse or any serious type of bodily harm within two hours after receiving it.
In other words, the reporting of abuse must take place practically immediately. Otherwise, if the allegation relates to something like neglect, nursing homes must report the allegations to the authorities within 24 hours after receiving it and in accordance with the procedures of the state where the abuse occurred. Each state may impose its own reporting requirements on top of what the federal rule prescribes.
The first thing that you can do on a state level to report abuse is to mention it to any care provider working with your loved one. They must report the information up the chain. The information must go to the nursing home administrator and the state. The facility cannot sit on or bury the information. Otherwise, there would be legal consequences.
Each state may set its own abuse reporting requirements within the spirit of the federal regulation. Every state will have its own legal setup to receive and investigate allegations of abuse.
The Centers for Medicare and Medicaid Services mandates that each state Medicaid agency have its own policies to ensure the reporting of abuse in state nursing homes. States will need to prioritize certain allegations of abuse based on their own procedures and federal criteria.
Georgia Nursing Home Abuse Reporting Laws
For example, in Georgia, the state requires reporting if there is the knowledge that any resident or former resident has been the victim of abuse or exploitation while residing in a nursing home. An adult protection agency providing protective services must receive the report over the telephone or online. Georgia requires that someone who has the duty to report notify the head of the facility, who will then make the report themselves.
An individual must file a report immediately upon the discovery of alleged abuse. If this report is not possible, then the facility must report the abuse directly to law enforcement. The nursing home must follow up any verbal or online report with one in writing within 24 hours. Georgia makes it a crime for someone who is required to report abuse to fail to do so. People who are not required to report abuse may still inform the appropriate agency.
Nursing Home Abuse Reporting Laws in Other States
Practically every state has some legal provision that requires a professional who works with the elderly to report suspected cases of abuse. In states like Maryland, the laws extend those obligations to any caregiving professionals who work with the alleged victim and not just a doctor or a social worker.
States will differ in the timeframes and how it receives the report of abuse. Some states may require written reports, while others will allow for only verbal reports over the phone. All states require near-immediate reports of abuse to some state agency.
How States Look Into Abuse Allegations
Most states will have several units that will look into these abuse allegations, depending on the allegation. Abuse reporting will usually begin with notification to an ombudsman or state’s department of aging, which will then assign the appropriate unit to investigate. Some investigations can be civil and criminal at the same time.
For example, California has a criminal law team that will investigate reports with an eye towards the possible filing of charges if a facility broke the law. Some instances of nursing home abuse, such as physical, financial, and sexual abuse, can result in jail time because they can constitute crimes of assault, battery, and theft.
California also has another division that will perform civil investigations of nursing homes for violations of state regulations. For example, some types of abuse such as emotional abuse and neglect may not violate criminal law, but they certainly go against the facility’s obligations to provide care and an environment free from abuse. Depending on the results of this investigation, the nursing home could face a stiff fine. The nursing home can be civilly liable when one of its staff members broke the law.
Here, families do not have to figure out which department to report the abuse. They would simply make one phone call to the state’s relevant Department of Aging or the nursing home ombudsman. It is up to the state to decide which type of investigation to conduct.
Each state will have its own procedures to investigate abuse allegations. They usually start with some form of mandatory reporting by professionals with knowledge of possible abuse or voluntary online reporting.
The State Found That Abuse Happened at the Nursing Home – What Happens Next?
The first thing that happens is that the nursing home will receive a citation for breaking the rules against nursing home abuse. The facility can draw a fine from either the state or federal government.
The fact that a state investigation substantiates an abuse allegation can increase the chances that your family would receive financial compensation in a nursing home abuse lawsuit. As mentioned above, the nursing home must provide an abuse-free environment.
Once the state confirms that nursing home abuse occurred, you would hire a nursing home abuse attorney. The attorney may file a lawsuit on your behalf. Keep in mind that you must still prove a few additional elements of your case.
Relevant questions that a jury may have before they award you financial compensation include:
- Was the abuse a breach of the nursing home’s duty of care that it owed to the resident?
- Did the abuse injure the resident? This is a bigger consideration in cases such as emotional abuse. Even in physical abuse cases, the resident would need to suffer an injury.
- Was the abuse the proximate cause of the resident’s injury? The nursing home may argue that any physical conditions were not necessarily an injury but caused by other underlying health conditions.
Your family needs to hire a lawyer when you have a suspicion of nursing home abuse. An experienced nursing home abuse attorney will guide you through the process of investigating and reporting the abuse to the appropriate authority. Your elder abuse lawyer would then discuss your legal rights, including whether you could file a lawsuit for financial compensation.
