South Carolina Nursing Home Lawyer & Attorney : Poliakoff & Associates Law Firm : Elderly Care, Senior Care

BakersfieldNow had an interesting article on the prevalence of elder abuse in nursing homes.  The article cites an investigator and ombudsman for the elderly.  They stated elder abuse in the nursing home industry happens more often than people know.

Nona Tolentino is an ombudsman for the elderly.   Tolentino's job is to investigate cases of suspected elder abuse in the nursing home industry.   Trying to verify it, however, can prove elusive, because people refuse to talk about it for a number of reasons.

"I call it the conspiracy of silence, (because) no one is able to talk for them," said Tolentino.

Under California law and in most states, nursing home employees are mandated to report any cases of suspected elder abuse. Tolentino finds that's not always happening, though, as employees keep quiet out of fear of losing their jobs.

Tolentino is adamant about patients' rights to a safe environment.   It was only back in 1987 when the Older Americans Act established a legislative framework for reform to better protect the elderly in nursing homes.   It is based on the premise that it is a resident's right to be free of verbal, mental, sexual and physical abuse, unnecessary physical and chemical restraints, and involuntary seclusion in a nursing or residential care facility.

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The Dallas News had an article about the role that Ombudsman's office has in advocating for nursing home residents.  The article stresses the importance of their role and the breadth of their power and responsibility. However, it all depends on the State's funding and the specific Ombudsman's knowledge of the regulations and standard of care.

The article revolves around Jennelle Dixson who is a nursing home ombudsman who looks out for residents too frail or too afraid to speak up about problems such as inattentive caregivers, dirty bedding and long delays in getting medication.   Ombudsmen are among the most important watchdogs of the nursing home industry.  The frequent prods and nudges they give nursing home administrators can have almost as much influence on the quality of care as the annual inspections that government regulators make.

The Senior Source, the nonprofit agency that runs the state's long-term ombudsman program in Dallas County, sends ombudsmen to 63 nursing homes at least once a month and 160 assisted-living communities at least twice a year.  Dixson checks on more than 1,000 residents in 17 nursing homes throughout Dallas. She visits most of the homes weekly. 

Forty-three percent of Americans who reach 65 can expect to spend time in one of the nation's 15,281 nursing homes. The average stay is almost 2 ½ years.

Though ombudsmen often meet an uncooperative administrator, their visits sometimes produce results because most nursing homes prefer to resolve issues before they escalate into black marks during state inspections. Last year, the Senior Source's ombudsmen received 8,600 complaints about nursing homes and 600 complaints about assisted-living communities in Dallas County.

Swanson says complaints involving abuse or serious neglect go to the Texas Department of Aging and Disability Services, the state agency that inspects and regulates nursing homes and assisted-living communities. "The most common complaint we receive is that caregivers take too long to answer residents' call buttons," Swanson said. "Patients may wait an hour for aides to escort them to the bathroom."   This lack of response often results in falls when residents attempt to make it to the bathroom without assistance.

I don't doubt that Mrs. Dixson is a caring ombudsman who benefits residents under her jurisdiction but the Ombudsman in South Carolina do absolutely nothing for the residents.  They do not act like advocates and often defend the actions or inactions of the nursing homes all the time stating "that is what my boss tells me to do."  The ombudsmen in South Carolina do not feel they have any power or right to tell the nursing homes how to provide care to the residents. If that is true, what is the point of their existence?  South Carolina needs to train the ombudsmen and give them the power and authority to challenge the nursing homes to prevent neglect and abuse.

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The Hartford Courant has an article about proposed reforms in nursing homes by the Connecticut Ombudsman's office.  I wish the South Carolina Ombudsman's office would play a proactive role in protecting resident's care and preventing neglect.  Below is a summary of the article.

Connecticut's long-term care ombudsman is proposing reforms in oversight that would protect residents who complain about poor care from retaliation and encourage state agencies to monitor and evaluate the performance of chains, rather than just individual homes.

The program outlined a dozen reforms, including protections for residents who complain about poor care such as preventing nursing homes from issuing involuntary discharges to people who file complaints for at least a year following the complaint.

The ombudsman's office also wants the Department of Public Health to impose "significant sanctions" when patient-care deficiencies result in death, and to weigh "common ownership and management" as a factor in imposing penalties against corporate operators. 

The recommendations were prompted by revelations about the troubled record of one of the state's largest nursing-home chains, Haven Healthcare, which filed for bankruptcy in November and faces a federal fraud investigation. Some of the chain's 15 Connecticut homes had escaped severe sanctions despite repeated citations for serious patient-care deficiencies resulting in death. The chain also defaulted on millions of dollars in bills for supplies and services, while its owner used corporate assets for personal profit.

Democratic state senators proposed strengthening state oversight of nursing homes and boosting staff levels. 

The ombudsman's office wants to require more financial "transparency" from nursing-home corporations, including disclosures of detailed information about related business entities. Owners shield excessive profits by diverting money to related ventures without detailing those transactions.

Other proposals call on the state to more carefully review the public-health and financial records of any new owners or managers of nursing homes or assisted-living facilities, and for "improved communication" among state agencies charged with overseeing elderly care.

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Description of Federal Requirements

The federal regulation (483.12) articulates rights that the resident has related to admission, transfer, or discharge, some of the procedures facilities must follow, and records they must keep. The definition of transfer and discharge here applies to movement to a bed outside the certified facility (including differently licensed beds in the same physical plant), but does not apply to movement to a different bed in the certified facility. (Those Intra-facility transfers are discussed under 483.10, Resident Rights.)

The rules regarding transfer or discharge (a) establish the conditions under which a resident may be transferred involuntarily, including that the facility is closing, the resident has improved so that he/she no longer needs the care, the facility is unable to provide the resident with the necessary care, the resident is a danger to self or others, and the resident has failed to pay for care or (if supported by third parties, including Medicaid) has failed to have the care paid for.

The federal rule establishes expectations for documentation regarding transfers (including the reason), and written notice to the residents of at least 30 days, unless the reason for transfer is related to urgent medical needs of the resident or health and safety of others.

 The written notice must include the reasons for the transfer/discharge, the effective date, the location of discharge or transfer, the right of appeal, and notification of how to reach the long-term care ombudsman and/or the appropriate Protection and Advocacy agency in the case of individuals with developmental disabilities or persons who are mentally ill. Further, the facility “must provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility.”

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