Nursing homes are regulated by the federal government under the Omnibus
Reconciliation Act of 1987 (OBRA), 42 U.S.C. § 1395 – 1396
(1999). State governments are also involved in the regulation of nursing
homes. Under OBRA, state governments are responsible for licensing and
certifying nursing homes in their states. In order for nursing homes
to receive Medicare or Medicaid, facilities must comply with OBRA provisions.
The primary goal of OBRA is to establish uniform standards
for nursing homes and ensure the protection and safety of patients.
For example, under OBRA, nursing homes must be inspected annually. Nursing
homes are also required to create individualized care plans, reduce
the use of chemical and physical restraints, and ensure that staff members
are properly trained for special need situations.
Although OBRA seeks to protect residents in nursing homes, OBRA does
not allow nursing home residents to file a lawsuit in order to enforce
OBRA regulations. State and federal agencies, however, are able to impose
penalties or seek legal action for OBRA violations.
Because states are responsible for licensing and certification of nursing homes, most states have adopted similar provisions found in OBRA. One provision that states have widely adopted is a “Resident Bill of Rights.” A resident bill of rights requires a nursing home to provide certain rights to residents. The rights generally grant residents in nursing homes a right to a dignified existence, self-determination, and access to other persons and services inside and outside the facility. Residents also have a right to be free from coercion, discrimination, interference, and reprisal from the facility. If a nursing home fails to meet these rights, it may be penalized, or have their license revoked.
Some states also have statutes that provide patients various remedies for nursing homes malpractice. In Texas, if a facility retaliates against a patient who reports a complaint, the patient may sue for the greater of $1,000 or actual and exlempary damages. Texas Health & Saf. Code § 242.1335. Persons may also be criminally liable.
Loncar & Associates is committed to upholding the quality of care in our long-term care institutions by taking swift legal action to compensate nursing home residents and their families for injuries resulting from neglect or inadequate care. Only this way will the quality of care for all residents be assured.
In the United States today, there are over thirty four million people above the age of 65. According to statistics, many will need some form of assisted living, whether it is a nursing home, assisted living facility or other elderly facility. Due to the fact that long-term care for the elderly is typically extremely expensive (well over $5,000 per month in many jurisdictions), the vast majority of residents go through most, if not all, of their assets in a matter of months and then become eligible for federal Medicaid benefits. Indeed, the cost of over 90% of nursing home residents is paid by Medicaid. As such, almost all nursing home facilities receive Medicaid funds.
Approximately one million senior citizens are abused in some manner every year in the United States. Nursing home residents have patient rights and certain protections under the law. The nursing home must list and give all new residents a copy of these rights. Resident rights include but are not limited to:
- Respect: You have the right to be treated with dignity and respect. Services and Fees: You must be informed in writing about services and fees before you enter the nursing home.
- Money: You have the right to manage your own money or to choose someone else you trust to do this for you.
- Privacy: You have the right to privacy, and to keep and use your personal belongings and property as long as it doesn't interfere with the rights, health, or safety of others.
- Medical Care: You have the right to be informed about your medical condition, medications, and to see you own doctor. You also have the right to refuse medications and treatments.
Whether a caregiver fails to meet the needs of the senior (neglect) or actually physically or mentally abuses a resident, nursing home abuse is not uncommon in today's society, and we must do our best to prevent it. Recently, there has been increased recognition that elderly and dependent adults are subject to risks of abuse, neglect and abandonment. The abuse can be recurrent neglect or a single egregious event which produces injury, either physical or financial. There are several common types of injuries that are suffered as a result of recurrent neglect, including:
- Falls and fractures
- Physical or chemical restraints
- Malnutrition or dehydration
- Improper, wrong or over-medication
- Bed sores
- Lack of supervision (allowing residents to wander away from the facility)
- Physical abuse or unexplained injury
- Weight gain or loss
- Septic shock