Nursing Home Abuse and Neglect Law

According to the National Council On Aging (NCOA), elder abuse is experienced by about 1 in 10 people aged 60 and older. These numbers likely reflect just a portion of the real problem, since many cases of abuse and neglect go unreported each year. Elder abuse can happen in the home or in institutional settings, like nursing homes. In this article, we'll focus on:

• definitions of elder abuse and neglect
• how to identify elder abuse, neglect, and exploitation
• legal liability for neglected and abused nursing home residents
• federal laws that protect the elderly from nursing home abuse and neglect
• what to do if you suspect elder abuse or neglect, and
• what law enforcement and other state authorities can do to help.

What Is Elder Abuse?

The Administration on Aging, a division of the Department of Health and Human Services, defines elder abuse as, "any knowing, intentional, or negligent act by a caregiver or any other person that causes harm or a serious risk of harm to a vulnerable adult."

The CDC identifies six types of elder abuse, including:

• physical abuse
• sexual abuse
• emotional abuse
• financial abuse
• neglect, and
• abandonment.

Slapping, pushing, and hitting are all examples of physical abuse. The improper use of restraints (physical or chemical) also falls into the category of physical abuse. But as you can see from this list, elder abuse isn't limited to the physical.

What Is Elder Neglect?

Defining "neglect" has been much more difficult, primarily because of the numerous forms that neglect can take, and how much the facts vary from one situation to the next. (Note that "neglect" is not the same as "negligence.")

Generally speaking, though, neglect is defined as any failure by a caregiver—whether it is hired staff or even a family member—to fulfill the obligations related to the older person's care.

Because an elderly person's needs are so wide-ranging, the forms of neglect can be just as varied. Typically they include any denial of needs related to shelter, food, clothing, hygiene, and medical care.

What Are the Signs of Elder Abuse and Neglect?

Every situation is different, but here are a few things to look for:

• Physical abuse: unexplained injuries such as bruises or broken bones; burns; frequent use of medical providers.
• Emotional abuse: fearful behavior; anxiety; severe and unexplained changes in moods or personality; fear of interacting with nursing home staff or caregivers; refusal to see family members or close friends; withdrawal from social support system; hesitation to talk openly.
• Sexual abuse: development of sexually transmitted diseases; genital or anal pain, injury, or bleeding.
• Neglect: malnourishment; lack of basic necessities such as food, water, poor hygiene, shelter; bedsores or skin ulcers; medical needs not attended to; unpaid bills.
• Abandonment: unsanitary or unclean living conditions; soiled bedding or clothing; lack of proper medical treatment.
• Financial exploitation: discrepancies between the person's standard of living and available assets; unexplained depletion of assets; unexplained financial transactions; missing personal property items; sudden and unexplained changes in living arrangements, such as a new location or new roommate.

Who Is Legally Liable for Abuse and Neglect in Nursing Homes?

When abuse or neglect occurs in the nursing home setting, the facility can be held liable if any of the following played a part in causing harm to a resident or patient:

• negligent hiring
• understaffing
• inadequate training
• breach of statutory or regulatory obligations, and
• medication errors.

Remember that the facility is also "vicariously liable" for the bad acts of its employees, including most actions taken in the course and scope of the worker's job responsibilities.

As part of a resident's care, nursing homes often hire contractors or otherwise outsource various tasks to third parties. Those third parties may also be liable for abuse or neglect of a resident. For example, if another resident—or a guest visiting the nursing home—injures a resident, the private security firm providing security to the nursing home may be liable for negligence, and therefore on the financial hook for damages.

Federal Laws to Protect the Elderly and Nursing Home Residents

Congress has created several laws to protect the elderly. Among other things, federal laws seek to safeguard the rights of the elderly in nursing homes. Here are some of the most significant federal laws.

Title XX of the Social Security Act

Title XX of the Social Security Act directs federal money to the states to provide community-based care for the elderly and disabled. Title XX funds a variety of programs and services, including efforts to prevent abuse and neglect of nursing home residents.

The Elder Justice Act

The Elder Justice Act is a comprehensive federal law enacted in 2010 to combat abuse, neglect, and exploitation of the elderly, including those in long-term care facilities. In addition to funding public health, social services, and criminal justice programs and activities, the Act created the Elder Justice Coordinating Council to coordinate elder justice programs across the federal government.

The Older Americans Act

The Older Americans Act became a federal law in 1965. It aims to provide comprehensive services to the elderly through a network of state and community agencies. The Act focuses primarily on nutrition and health programs.

The Nursing Home Reform Act

Enacted in 1987, the Nursing Home Reform Act (NHRA) is designed to ensure that nursing home residents receive quality basic care. The NHRA is perhaps best known for protecting nursing home residents under a "Resident's Bill of Rights," which ensures rights to:

1. freedom from abuse, mistreatment, and neglect
2. freedom from physical restraints
3. privacy
4. accommodation of medical, physical, psychological, and social needs
5. participate in resident and family groups
6. be treated with dignity
7. exercise self-determination
8. communicate freely
9. participate in the review of their care plan, and be fully informed in advance about any changes in their care, treatment, or status in the facility, and
10. voice grievances without discrimination or reprisal.

State enforcement agencies can impose several penalties, including monetary fines and replacement of nursing home management, for violations of the NHRA.

Long-Term Care Ombudsman Program

This program exists in every state. Ombudsmen are advocates for nursing home residents. They work to resolve issues associated with the care of individual residents. Each state investigates individual complaints about nursing home abuse, neglect, and exploitation. More information is available at the National Long-Term Care Ombudsman Resource Center.

States also have laws to protect the elderly from abuse, neglect, and exploitation. Here's a federal webpage with a list of state elder abuse laws (including laws regarding Native American elder abuse).

What Should I Do If I Suspect Elder Abuse or Neglect?

If you're a victim, or if you suspect that someone you know is a victim of elder abuse or neglect, you should immediately call the police or Adult Protective Services. You do not need to prove abuse in order to make a report. To get started, go to the National Center on Elder Abuse "Reporting Abuse" resource page.

If you're concerned about potential problems at a nursing home or assisted living facility resident, your state's long-term care ombudsman can also serve as a resource. Call the U.S. Administration on Aging at 800.677.1116 or find the long-term care ombudsman program in your state.

The Elder Justice Initiative was established by the U.S. Department of Justice to oversee diverse programs that benefit victims of crime. The EJI website has a page specifically for victims of elder abuse. It contains links to many agencies that will assist a senior following an incident of abuse or neglect.

How Can the Authorities Help?

If an elder abuse victim is in imminent physical danger, or is at immediate health risk, the local police or responding paramedics may remove the victim from the scene and to a safe location (including a different care facility if necessary). If a crime has been committed, the police will conduct an investigation and refer the complaint to the judicial system.

If the threat of harm or abuse is less urgent, procedures vary from state to state. Generally, however, the state's office of Adult Protective Services will be charged with investigating the complaint and assessing the danger. APS will then enlist partner social services to address the health and safety concerns of the victim.

Talk to a Lawyer

When elder abuse is suspected, you might want to talk to a lawyer. A lawyer can identify the appropriate response in a non-emergency situation and will make sure that the elder person's well-being and legal rights are protected. Learn more about choosing a good personal injury lawyer.