Is Nursing Home Neglect Legal?
When you think of nursing home abuse, it probably brings to mind tragic stories of elderly residents being physically or psychologically tormented or financially exploited by nursing home staff. While those are serious situations requiring immediate intervention, there's another form of abuse that often flies under the radar -- neglect. With an estimated 3.2 million Americans in roughly 17,000 nursing homes throughout the country, this often understated problem of nursing home neglect poses a significant risk to many Americans.
What Constitutes Nursing Home Neglect?
The legal definitions of nursing home neglect differ by state, but the usually describe the failure of caregivers to provide or ensure:
- Adequate food;
- Appropriate shelter that is safe and protected from the elements;
- Appropriate clothing for the environment;
- Bathing services;
- Timely medical care; and
- Supervision by staff and medical providers.
Failing to provide nursing home residents with such basic necessities or allowing residents to deny themselves basic necessities, also referred to as self-neglect, is illegal under state and federal law. However, as in most situations, the degree of illegality depends on the severity of the violation.
Illegal Doesn't Always Mean Criminal
Whenever talking about what's illegal, it's important to make a few distinctions. After all, violating the speed limit is technically illegal, but it doesn't carry the same connotations as someone convicted of first degree murder.
Laws do a number of things, from setting procedures for agencies or courts to forbidding certain conduct. Laws that forbid conduct are generally considered either civil laws or criminal laws, violations of which would be considered illegal, but with different degrees of penalties.
The violation of a civil law against another, like trespassing, produces remedies for the injured party if they file a lawsuit, such as a court order to pay damages or perform specific actions. Criminal violations also involve harm to others, but with actions deemed by society as so serious as to constitute an offense against the state. Because of this, criminal laws warrant harsher forms punishment such as incarceration.
Nursing Home Neglect: Civil vs. Criminal
In the context of nursing home neglect, there are a mix of civil and criminal laws that apply based on a spectrum of neglect. Minor degrees of neglectful conduct, like unintentionally and accidentally missing a resident's medical appointment, may not violate a law, but as the neglect becomes more serious or repetitive it could result in violations of civil and even criminal laws leading to specific remedies toward the victim as well as punishments by the state.
There are a number of federal and state civil laws and regulations that apply to nursing homes. Those that participate in Medicare and Medicaid, for example, are subject to the Nursing Home Reform Act, a federal law with accompanying regulations. Under this law, nursing homes are required to have, among other things:
- Sufficient nursing staff;
- Comprehensive care plans for patients;
- Proper treatment and assistive devices;
- Appropriate patient supervision;
- Necessary services to carry out activities of daily living; and
- Maintenance of accurate, complete and accessible clinical records.
The failure to comply with these regulations, while violating federal law, doesn't necessarily result in criminal charges and penalties. Instead, they could subject nursing homes to civil penalties such as:
- Civil money fines;
- Denial of Medicare/Medicaid payments;
- Use of independent assessors;
- Appointment of temporary management to oversee facilities; or
- Removal and transfer of residents to other facilities.
However, there are times when nursing home neglect is so egregious that it violates criminal as well as civil laws, usually in cases where the conduct was intentional. In California, for example, the crime of elder abuse is punishable by up to seven years in prison where one "willfully causes or permits the person or health of the elder or dependent adult to be injured" in a way that is likely to produce great bodily harm or death.
Additional Resources for Nursing Home Neglect
Along with the civil and criminal laws relating to nursing home neglect, there are a number of resources available to victims and their loved ones. Learn more by reviewing the articles below.
Next Steps: Free Case Review
One of the primary reasons why nursing home neglect persists is because the victims are often unable or unwilling to report the abuse. This means that it's critical for others to intervene when they see red flags. If you're not sure what to do, you should speak with an experienced attorney who specializes in nursing home abuse cases. An attorney can advise you of the best ways to deal with a situation and protect a loved one. Learn more with a free case review.