With 632 nursing homes throughout New York State, there are bound to be, each year, a number of alleged or proven incidents of abuse, neglect or other mistreatment of their residents.
But a total of 8,909 reported incidents in a recent year — plus countless others that went unreported — are far too many, experts agree.
And the count would undoubtedly be even higher — perhaps much higher — were it not for relevant federal or state laws and regulations, along with protective services by various public or private organizations.
According to a report by the NYS Department of Health (the (DOH), during a recent calendar year there were 8,039 alleged violations of state or federal nursing home regulations — plus 870 additional complaints of abuse, neglect , mistreatment and wrongful death.
But high as those numbers are, experts believe that countless other incidents also occurred, but…
“Only 1 of every 25 incidents were reported”
The New York State Elder Abuse Prevalence Study estimated that for every incident reported, 24 were not. If so, it was primarily due to:
• The victim’s fear of reprisal; i.e., even worse treatment)
• Few or no visitors, who could see and report mistreatment
• Disbelief — especially if complainers had mental problems
• Nursing home records did not record every violation
• Witnesses did nothing, believing “It’s none of my business.”
To help reduce nursing home injuries, abuse and neglect, there are a variety of laws, regulations and services — many little-known to the public.
Among the laws is New York State’s Patient Abuse Reporting Law. In effect since 1977, it requires all nursing home employees, including administrators and operators, and licensed professionals who work in, or who visit nursing homes, to report — to the state’s DOH — any instances of alleged abuse, neglect or mistreatment.
Obviously, this law has not been 100% effective.
In addition to the DOH, the state’s Attorney General handles cases of nursing home negligence when they result in serious harm or death.
In 2014, for example, seven nursing home employees were arrested in connection with the death of an elderly female patient. The facility’s administrator was accused of an alleged cover-up, and a licensed professional was charged with criminally negligent homicide.
The patient, who suffered from pneumonia, was in the facility for temporary rehab. Authorities charged that during her stay, her ventilator became disconnected, but workers at the facility ignored the alarms for two hours, and the patient died soon after. When a whistle-blower secretly contacted the
Attorney General’s office, an investigation was started and the arrests followed.
The family had been told, by the nursing home, that the patient died of a heart attack. But “It didn’t sit right with us,” her daughter recalled. “I cried a lot, but now I’m very angry…. How can you be that negligent? That was a life.”
Another way nursing home residents are protected is via the LTCOP program.
LTCOP stands for Long Term Care Ombudsman Program. It’s a federal advocacy program designed to protect residents of long-term care facilities.
In New York State, the Office for the Aging operates the LTCOP via specially trained and certified citizen-volunteer ombudsmen. Many of the volunteers are retired professionals from various fields, who spend four to six hours per week in their assigned facilities, advocating for the residents of nursing homes, assisted living facilities, and other adult care homes.
They investigate and resolve complaints made by or on behalf of residents; promote the development of resident and family councils; and inform government agencies, providers and the general public about issues and concerns impacting residents of long-term care facilities. They also help residents understand and exercise their rights to good care in an environment that promotes and protects their dignity and quality of life.
There are also federal laws that often apply.
That’s because the majority of nursing home residents rely on federal programs — Medicare or Medicaid — to pay for most or all of their care. So when a nursing home that collects federal funds is the scene of a federal crime, the FBI can step in and conduct investigations.
“We currently have jurisdiction over violations of more than 200 categories of federal law.” Included, under “White-Collar Crime,” is Health Care Fraud.
As an example, they summarized a recent case of nursing home abuse (not in NYS) where there was “Not enough food, little air conditioning or heat, leaking roofs, trash piled up, and flies and rodents everywhere, along with rampant mold and mildew”—plus inadequate staffing and failure to pay employees, their health insurance premiums, and vendors—despite receiving nearly $33 million in payments from Medicare and Medicaid for residents’ care.
Numerous complaints led to investigations by the FBI, the U.S. Department of Health and Human Services, and the IRS. The facility’s owners were tried and convicted of fraud, for submitting payment claims for worthless services.
As noted by the Centers for Medicare & Medicaid Service (CMS): “Federal law requires all Medicare and/or Medicaid-certified nursing homes to provide enough staff to provide care for each resident based on their needs.” However, the CMS added:
“There is no current federal standard for the best staffing levels.”
According to the agency, “These nursing homes must have at least one licensed Registered Nurse (RN) for at least 8 hours per day, 7 days a week, plus other nursing staff — such as an RN, a Licensed Practical Nurse (LPN), or a Licensed Vocational Nurse (LVN) — on duty 24 hours a day.” (Via two, three or more shifts.)
“Certified Nursing Assistants (CNAs) are generally on staff 24 hours a day. They work under the supervision of a licensed nurse to help residents with daily activities, such as eating, bathing, and dressing. All CNAs must complete a competency evaluation program or nursing assistant training within 4 months of their permanent employment. They must also take continuing education training each year.
“Some nursing homes may require more staff, due to the number of residents, specific conditions of their residents, along with other factors such as whether the nursing home has special care units.”
But with no federal standard for staffing levels, it’s up to each nursing home to set and maintain its own acceptable level of professional care.
It’s also up to the residents themselves, and/or their visitors, to notice and report obvious understaffing or other violations. But as noted above, many are reluctant to do so, or they don’t know which government agency to contact.
Although many nursing homes in New York State try to maintain the highest possible standards, countless others put profit above patient care, by providing less-than-optimum conditions.
That’s why it’s so important for nursing home residents and their loved ones to know what the laws and regulations dictate, and also to take corrective action if and when needed.
At a minimum, federal law specifies that a nursing home must protect and promote the following rights (summarized here) of residents.
• Residents must be treated with dignity and respect, and should have the right to choose when to go to bed, get up, use the bathroom, eat meals, etc. (However, most nursing homes provide breakfast, lunch and dinner only at specific times.)
• Residents should have the right (and opportunity) to participate in activities programs designed to fit their needs.
• Residents should be free from discrimination, and nursing homes must comply with federal, state and local civil rights laws. (But facilities are not required to accept everyone who applies, if refusal is based on non-civil rights issues.)
• Residents have the right to be free from physical, mental, verbal and sexual abuse. (And also protected from theft of money, valuables or other personal property.)
• Nursing homes must investigate all suspected violations of laws and regulations, and any injuries of unknown origin, and then report them to the appropriate authorities within 5 working days of the incident.
Law-enforcement agencies are often asked to handle various nursing home incidents, but their experience and actions may be limited.
Law-enforcement agencies range from the local and county police to the state police and (as mentioned) several federal agencies — but they may be limited by jurisdiction, type of offense, experience, workload, manpower, and/or specific actions they can legally (or agree to) take.
Also, they usually are unable to directly help victims or their loved ones receive any monetary compensation from those charged and proven to be responsible for nursing home abuse, neglect or other criminal acts.
We have extensive experience and comprehensive knowledge needed to successfully sue nursing homes for negligence and collect judgments for our clients and their loved ones.
Our team of attorneys, medical specialists and private investigators, is qualified to file suit in any court (including federal court) in New York State.
We work on a contingency basis — no fee unless we win the case — and offer an initial interview, by phone, at no cost and without obligation.