Statutory Protection of Older Persons
Today, all states have laws concerning the abuse, neglect or exploitation of older people, but these states may follow different approaches. In most states, there is a system of adult protective services for investigating and remedying reported abuses. Moreover, some states have laws giving victims of abuse, neglect or exploitation a civil cause of action. Finally, in most states, the abuse or neglect of older people is also a crime.
Adult Protective Services
Typically, before any civil or criminal action is commenced against a nursing home, a report will have been made to your state's adult protective services agency, or other system in place for the reporting and investigation of allegations of the abuse, neglect or exploitation of the elderly.
All states have a system for reporting allegations of abuse, neglect and exploitation of the elderly, for investigating the allegations and, if the allegations are founded, for providing services to the older person to remedy the problems and prevent their recurrence. In fact, most states have mandatory reporting requirements with respect to such allegations. If an agency concludes that an allegation is founded, it will respond by offering the older person appropriate services, such as medical assistance, counseling, special transportation, assistance with money management, or placement in a different residential setting.
Civil Actions Based on Statutes
Some state legislatures have created causes of action involving the abuse, neglect, or exploitation of older people, which allow victims to bring civil actions against the perpetrators and/or their employees. These causes of action may authorize damages awards to victims, but may also authorize the issuance of injunctions and restraining or protective orders, for immediate relief from ongoing abuse or neglect. Additionally, some states have special statutory rights of action for the violation of the rights of residents of long-term care facilities. Generally, the statutory rights of long-term care facility residents include the right to be free from abuse and neglect, or the right to a safe environment.
To qualify for Medicaid funds, long-term care facilities that qualify as "skilled nursing facilities" must meet certain federal, statutory and regulatory requirements. Most nursing homes today fall in this category and, therefore, must meet federal standards. One federal requirement is that such facilities comply with a "Residents Bill of Rights," which provides that residents have the right to be free from verbal, sexual, physical and mental abuse, corporal punishment and involuntary seclusion.
While state definitions of abuse vary, many states' definitions include actions that cause emotional anguish, psychological injury, or suffering. These definitions may cover a wide range of acts, from verbally insulting or demeaning an older person, to other actions that have the effect of causing emotional pain to, or instilling fear in, an older person. Some states also include isolating or unreasonably confining older people as a form of abuse. Isolation might include preventing communications with, or visits to, the older person. While the term "unreasonable confinement" suggests that, under some circumstances, an older person's movement might reasonably need to be restricted for his or her safety, confinement beyond that which is necessary for the person's protection could be considered abuse.
Nursing home residents are, for the most part, dependent on others for at least some of their basic needs, such as food, shelter, and medical treatment. Being deprived of these necessities can harm or endanger an older person as much as an intentional injury can. Shocking examples of neglect, from reports to Congress on the abuse and neglect of older people, include persons lying in their own waste, with bedsores, having no human contact, and clearly in need of medical attention and personal hygiene.
Most states define neglect of an older person as the failure to provide him or her with services essential to health and safety, such as food, shelter, clothing, supervision, and medical care. Whether such failures are intentional, or simply careless, often will determine whether a case against a nursing home is framed as one for neglect or abuse.
Another way in which older people might be harmed is when they are taken advantage of by caregivers. This could include having their money or property taken, being induced to perform sexual acts without consent, or being forced to perform other services for the benefit of a caregiver. Such exploitation might not endanger the older person's health or safety, but it may result in the loss of the person's property or self-esteem. Thus, these situations may call for state intervention.
Many states define exploitation as the wrongful use of an older person's resources for another person's profit or advantage. State laws use various terms to denote the wrongful nature of the act, such as "illegal," "improper," "unjust," and "without legal entitlement." Some definitions refer simply to the misuse of the person's funds, property or person. Some states specify that, to qualify as exploitation, the resources must have been obtained without the older person's consent, or obtained through undue influence, duress, deception or false pretenses.