NURSING HOME LITIGATION

I. GENERAL BACKGROUND

The nursing home industry has developed as a proprietary industry predominated by chain ownership. About three quarters of all nursing homes are run for profit. By contrast, only five percent are publicly owned facilities. As of 1986 approximately eighty-two percent of all nursing homes participated in federal programs such as Medicare or Medicaid.

According to one author: "[W]hile only five percent of America's elderly reside in nursing homes at any time, research indicates that a much higher percentage of Americans, at least twenty percent, can expect to spend some time in a nursing home before death." Jost, The Problem of Consent for Placement, Care and Treatment of the Incompetent Nursing Home Resident, 26 St. Louis U.L.J. 63 (1981-1882).

The federal Nursing Home Reform Act of 1987 was passed as part of the Omnibus Budget Reconciliation Act of 1987 (OBRA '87). Extensive amendments in 1990 (OBRA 1990) (Pub. L. No. 101-508) were again highly prescriptive and read more like rules and regulations than a statute. In order to comply with OBRA '87, Texas state regulations were promulgated under a new title, 40 TAC, Chapter 19. Under law, the "rules and standards adopted [in Texas] may not be less stringent than the Medicaid certification standards and regulations imposed [by OBRA]." Tex. Health & Safety Code Ann. § 242-037(c) (Supp. 1999).

In Texas, nursing home facilities are regulated by the state. See Tex. Health & Safety Code ann. § 242, et seq. (1992 and Supp.), and must be licensed in order to operate. Id. at § 242.031. Effective September 1, 1997, S.B. 190 was enacted by the 75th Texas Legislature and made extensive reforms to the regulation of nursing homes in Texas. This included a requirement that each licensed institution "shall, at a minimum, provide quality care" in accordance with "the applicable Texas statutes, rules and standards" and provided that a violation of these minimum standards is "forbidden by law." Tex. Health & Safety Code Ann. § 242.001(a) (Supp. 1999).

Nursing homes are also subject to all of the provisions of Tex. Rev. Civ. Stat. Ann. art. 4590i (Supp. pamph. 1999), and § 1.03(a)(3) of Texas Medical Liability Act. "Health care provider" specifically includes: "any person, partnership, professional association, corporation, facility, or institution duly licensed or chartered by the State of Teas to provide health care as a . . . nursing home, or an officer, employee, or agent thereof acting in the course and scope of his/her employment."

All nursing homes are state licensed health care facilities. However, certified nursing homes constitute the majority of nursing homes throughout the country. Certified nursing homes are licensed nursing homes and additionally serve Medicaid and/or Medicare beneficiaries. In order to be a participatory certified nursing home, the facility must contractually promise all of its applicants, its residents and Federal and State Governmental entities that the institution complies with regulatory standards relative to nursing home care. Certification standards are generally more comprehensive than "licensure standards".

The nursing home generally has ample opportunity to determine whether it will accept a resident. The facility probably markets itself as a specialist in the area with knowledge and ability to provide the services promised and required to care for the needs of the prospective resident. The resident's family is at a disadvantage because they must rely upon the nursing home's representation of its skills and ability to care for the elderly, most likely, disabled prospective resident. Irregardless of the lack of knowledge of the resident's family members, the nursing home is obligated to meet the minimum standards of care established by federal and state regulations.

II. GENERAL STEPS FOR REVIEW PRIOR TO LITIGATION

There is basic information which an attorney needs to consider in order to evaluate a potential claim. The following is a basic list of information, but not exclusive, which should be gathered and reviewed before filing suit:

1. Meet with family members and resident, if resident is mentally capable, and discuss facts and reasons why the family and resident believes the nursing home may have been at fault for what happened to the resident.
2. Execute a contract by the resident or authorized representative of the resident allowing the attorney to investigate/pursue a potential claim.
3. Obtain copy of any existing Will.
4. Obtain properly executed medical authorizations.
5. Obtain all medical records for all health care providers who provided care to the resident of the nursing home. Medical records outside the nursing home should be reviewed to establish all health conditions/illnesses/diseases suffered by the resident prior to admission into the nursing home to determine any connection with conditions/illnesses/diseases occurring during the residency at the nursing home. All hospital or other outside medical records during the stay at the nursing home should be reviewed. They could establish conditions which existed upon transfer from the nursing home to a hospital which obviously occurred during the stay at the nursing home.
6. All nursing home records, including but not necessarily limited to, the following:
   1. Resident Assessment
   2. Life Care Plan
   3. Nurses' Notes
   4. Medical Condition Changes
   5. Physician's progress notes, orders, history & physical.
   6. Laboratory, x-rays and rehabilitation reports.
   7. Discharge Summary.
   8. Initial Medical Evaluation.
   9. Intake/Output Records.
   10. Albumin level recording.
   11. Dietician records and orders.
   12. Weight Chart Records.
   13. Occupational Therapy Records.
   14. Monthly nurse summaries.
   15. Food service records.
   16. ADL Flow Sheets.
   17. Tube Feeding Sheets.
   18. Photographs taken by facility.
   19. Medication Records.

The period of time that the resident was a patron at the nursing home may determine the period of time for which records are requested. Generally, you should ask for at least two (2) years of records. If possible and time permits, a request should be made for an in person review of original records before obtaining copies. Colored copies should be requested in order to obtain duplicate originals which may be indicative of entries after notification or awareness by the nursing home of a potential claim.

7. Obtain all records of each physician who cared for the resident at the nursing home.
8. A copy of any Power of Attorney executed in favor of any person or family member should be included in any request for information regarding the resident.
9. A copy of any Order of Appointment of a personal representative to act for and on behalf of the resident.
10. Records of ownership of the nursing home from the State agency issuing the license to operate.
11. Copies of the attachments to the Ownership Disclosure documents, including Management Agreements.
12. Copies of any Statement of Deficiencies issued by the State against the nursing home or its parent company.
13. Copies of any Plan of Corrections and attachments sent by the nursing home in response to any Statements of Deficiencies.
14. Copies of correspondence, letters, and checks forwarded by the nursing home to the State.
15. Photographs of the resident before admission to the nursing home, while at the nursing home or taken by other health care providers such as hospitals upon transfer from the nursing home to a hospital.
16. Copies of any complaint the State received about the care of any residents at the nursing home.
17. Copies of any police reports.
18. Copies of any ambulance records regarding transfers of the resident from the nursing to any hospital.
19. Copies of all literature or materials provided to the resident or a resident's family members at the time of admission or during residency.
20. Search the Internet for background information on the nursing home and its corporate structure.
21. Copy of Death Certificate, if applicable.

Common injuries and conditions which are often screened and evaluated for a potential claim are as follows:

1. Pressure Sores/Bed Sores/Decubitus Ulcers
2. Malnutrition and Dehydration/Improper Feeding
3. Falls
4. Unexplained Injuries, Bruises or Fractures
5. Physical/Sexual Abuse by Staff/Assault by Other Residents
6. Wandering/Elopement Injuries
7. Dignitary Injuries/Privacy Claims
8. Failure to Provide Appropriate Services - Rehabilitation/Contractures
9. Injuries from Staff Neglect
10. Improper Use of Restraints (Chemical & Physical)
11. Improper Administration of Medications/Medication Errors
12. Theft of Resident Belongings
13. Economic Exploitation of Elderly/Billing and Financial Medicare/Medicaid Fraud

III. LIMITATIONS UPON DISCHARGE

A private-pay facility which is not certified to receive Medicare or Medicaid payments may generally discharge or transfer a resident on any basis agreed to in the admissions contract. A resident in a nursing home participating in the Medicare or Medicaid program may not be discharged for nonpayment. Further, such a nursing home may transfer or discharge a resident only under limited circumstances, such as where transfer is needed for his or her own welfare or for the safety of others and, except in limited cases such as the need for urgent medical treatment, at least thirty (30) days' notice is required to be given prior to transfer or discharge of a resident.

An elderly person, in addition to having the rights of a citizen, has the rights listed in the Texas Human Resources Code, Section 102.003(a) -(t)(Supp. 1999). A copy of these rights must be provided in writing to each elderly person who receives public services and a list of the rights must be displayed conspicuously in any nursing homes providing service to the elderly. Id. at § 102.004.

IV. LIABILITY CLAIMS

1. Contract

   Nursing home services are generally provided pursuant to a contractual arrangement. However, this does not prevent tort claims against a nursing home by a resident.

2. D.T.P.A./Implied Warranty

   Under Texas law a "nursing home" is classified as a "Health care Provider." Tex. Rev. Civ. Stat. Ann. art. 4590i at §1.03(a)(3). Therefore, any attempt to state a cause of action under the Deceptive Trade Practices Act is arguably precluded as a matter of law although there is strong argument to the contrary.

3. No Fiduciary Duty or Duty of Good Faith

   A nursing home facility does not owe either a fiduciary duty or a duty of good faith and fair dealing to one to whom it is providing care.

4. Notice

   Article 4590i requires that written notice, by certified mail, return receipt requested, be given at least sixty days before filing suit against a nursing home, a physician or a pharmacist. When a notice letter is given under art. 4590i, the applicable statute of limitations is tolled for seventy-five days following the giving of the notice. Id. at § 4.01(c).

5. Negligence

   Tort actions may be brought against a nursing home. Suits may involve claims of negligence or claims of wrongful death due to negligence. A plaintiff bringing a negligence claim against a nursing home has the burden to plead and prove the traditional elements of a negligence cause of action.

   Under Texas law it has been held that:

   A nursing home...is under a duty to exercise such reasonable care for a patient's safety as his known mental and physical condition may require. No general rule can be articulated for this standard requires that a determination of what constitutes "reasonable care" be made in each individual case, taking into consideration the individual patient's known mental and physical condition. Golden Villa Nursing Home Inc. vs. Smith, 674 S.W.2d at 348.

   Under Texas law a nursing home may be held to be under a duty to exercise a high degree of care in selecting employees.

   The general duty owned to each resident varies depending upon the circumstances of each individual case. Medical treatment is basically the responsibility of a physician, but the nursing home must provide a reasonable level of nursing home care. Unnecessary restraint of nursing home patients is to be avoided, see generally Johnson, The Fear of Liability and the Use of Restraints in Nursing Homes, 18 Law, Medicine & Health Care 263 (1990); Evans & Strumpf, Tying Down the Elderly: A Review of the Literature on Physical Restraint, 37 J. Am. Geriatric Society 65 (1989); Rubenstein, et al., Standards of Medical Care Based on Consensus Rather Than Evidence: The Case of Routine Use of Bedrails for the Elderly 11 Law, Medicine & Health Care 271 (1983), but failure to restrain or supervise when necessary can lead to tort liability. See Golden Villa Nursing Home, Inc. v. Smith, 674 S.W.2d 343.

6. Negligence Per Se

   The duty owed by a nursing home to its patients or residents may be shaped by statutes, ordinances, or regulations, and violations thereof may be negligence per se. According to one commentator, when "a nursing home violates a federal, or state regulation or deviates from statute, this is prima facie evidence of negligence." Nursing Homes, 37 Drake L. Rev. at 704.

   Under Texas law, generally, proof of the unexcused violation of a penal statute or administrative regulation constitutes negligence per se. See Southern Pacific Company vs. Castro, 493 S.W. 2d 491, 497 (Tex. 1973).

7. Gross Negligence

   Since September 1, 1995, exemplary damages are no longer predicated upon findings of gross negligence. A claimant seeking exemplary damages must prove either malice, fraud, or, in statutory wrongful death actions, willful act or omission or gross neglect. Tex. Civ. Prac. & Rem. Code § 41.003.

8. Intentional Torts

   Tort actions alleging commission of intentional torts may be brought against a nursing home. "Fraud, assault, and battery are common types of intentional torts which a nursing home may be alleged to have committed." Nursing Homes, 37 Drake L. Rev. at 701. Under some circumstances a nursing home may face liability for the intentional tort of false imprisonment.

9. Vicarious Liability

   Under general principles of vicarious liability an employer, or master, may be held liable for torts committed by an employee, or servant. See, generally, 1 Texas Torts and Remedies Chapter 4 (Matthew Bender 1992). This is sometimes referred to as the doctrine of respondent superior. For example, under Texas case law it appears that the tortious misconduct of a nursing home employee may lead to liability on the part of the nursing home.

   A nursing home can obtain from the Department of Public Safety a criminal history record of any applicant for employment that has direct contact with a resident in the nursing home. Tex. Health & Safety Code Ann. § 250.001-002 (Supp. 1999). If an applicant has been convicted of one of the following offenses, the facility may not employ such person in a position with direct contact with a resident:

   criminal homicide
   kidnaping and false imprisonment
   indecency with a child
   sexual assault
   aggravated assault
   injury to a child, elderly individual, or
   disabled individual
   abandoning or endangering a child
   aiding suicide
   agreement to abduct from custody
   sale or purchase of a child
   arson robbery aggravated robbery.

   Id. at § 250.006. If an applicant or employee is determined to be ineligible for the position, the facility must notify the applicant or employee. The Department of Public Safety must permit the applicant or employee to be heard with respect to any inaccuracies in the criminal history record information. Id. at § 250.005. Criminal history records are for the exclusive use of the facility and the employee or applicant and are considered privileged information. The criminal records and reports may not be released to anyone else absent court order or consent of the applicant or employee. Id. at § 250.007-008. If a facility makes a good faith effort to comply with the criminal history checks of nurses aides, the facility is not liable for failure to comply. Id. at § 250.009(a).

10. Duties To Third Parties

    Under some circumstances a nursing home may owe a duty to third parties. That is, the nursing home may owe a duty to members of the general public who are not residents or patients in the nursing home. Breach of such a duty may give rise to tort liability. For example, a case in which a nursing home was held to be liable in tort to a third party involved a nursing home resident who suffered from senility, non-psychotic brain syndrome, confusion, and a tendency to wander, and who was known to require "close supervision," and was left unattended. While unsupervised this resident wandered onto a highway and was struck by a motorcycle. The operator was injured and sued the nursing home alleging that her injuries were caused by failure of the nursing home to provide proper care and supervision for the resident. The trial court judgment in favor of the motorcycle operator and against the nursing home in this tort case was affirmed, the appellate court noting that the nursing home did owe a duty, and that breach thereof did proximately cause harm to the motorcycle operator.

11. Duties To Protect Against Third Parties

    Under some circumstances a nursing home may owe a duty to protect residents or patients against third parties. Thus, a nursing home may face potential tort liability if a resident is harmed by another resident.

12. Premises Liability

    A nursing home generally owns, or at least occupies, premises of some type. It is clear that in Texas a nursing home is subject to the general duties owed by a premises owner or occupier and, in an appropriate case, may be held liable in tort under a premises liability theory. See Golden Villa Nursing Home, Inc. v. Smith, 674 S.W.2d at 350; see also 1 Texas Torts and Remedies chapter 20 (for a general discussion of premises liability law).

13. The Requirement of Expert Testimony

    In a tort case brought against a nursing home expert testimony may be required to establish the standard of care.

    Where an expert is required a nurse may qualify to give expert testimony on some issues that relate to nursing standards.

    Expert testimony is not always required. Whether expert testimony is needed depends upon whether the trier of fact can properly understand the issues raised by the case without expert testimony.

    Under Texas law expert testimony will be required where the issues raised involve specialized knowledge and the expert testimony is needed to assist the trier of fact to understand the evidence or to determine a fact in issue. Expert testimony will not be required with regard to matters or issues that "are plainly within the common knowledge of laymen." Thus, proof regarding issues relating to nonmedical, administrative or ministerial matters may not require expert testimony.

14. Expert Witnesses (4590i Restrictions)

    Article 4590i restricts the types of expert witnesses who may testify in a case against a health care provider. First, the witness must be practicing at the time the testimony is given, or have been practicing when the claim arose; second, the witness must have knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury or condition involved in the claim; third, the witness must be qualified to offer an expert opinion. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 14.01(a). The court can depart from these three criteria if the court finds [and states on the record] "a good reason to admit the expert's testimony." Id. at § 14.01(a)(2).

15. Sources of Guidance Regarding Standard of Care

    A number of sources may give guidance as to the duty, or standard of care, owed by a nursing home. Standards may be established by case law. See Nursing Homes, 37 Drake L. Rev. at 702-704; and see Golden Villa Nursing Home, Inc. v. Smith, 674 S.W.2d at 348. Standards may be established by statute, or by a federal or state regulation. See Nursing Homes, 37 Drake L. Rev. at 704-705; see also Tex. Health & Safety Code Ann. § 242.001(a) (Supp. 1999); See OBRA

    Standards may be established by voluntarily adopted standards implemented or adopted by the nursing home.

16. Proximate Causation

    Under Texas law proximate cause must be proven as part of a tort claim against a nursing home. Failure to make satisfactory proof of proximate cause will result in verdict against plaintiff. If the particular case requires expert testimony to raise a fact issue on proximate cause then lay evidence alone will not suffice to warrant submission to the jury.

17. Statute of Limitations

    The statute of limitations is two years, "from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed." Tex. Rev. Civ. Stat. Ann. art 4590i, § 10.01. If the claimant is a minor under the age of 12, then such minor has until his or her 14th birthday to file suit; all others are subject to the two years statute of limitations. Id.

18. Liability Limits - Damage Caps

    This provision, however, has been held to be unconstitutional when the claim is asserted by the victim of the malpractice. On the other hand, if the claim is derived from statute, i.e., a suit by a widow or parents under the wrongful death act, then the limitation on damages is constitutional.

19. Suit for Retaliation Against Resident

    A nursing home may not retaliate or discriminate against a resident because of the making of a complaint or the filing of a grievance or report in accordance with Chapter 242 of the Health and Safety Code. This is expressly Prohibited. Tex. Health & Safety Code Ann. §242.1335 (Supp. 1999). A resident who, in violation of this law, is retaliated or discriminated against may sue for injunctive relief, actual damages, exemplary damages, court costs, and recovery of attorney's fees. Id. at § 242.1335(b).

20. OBRA Violations (Nursing Home Reform Act of 1987)

    Nursing homes who receive federal funds are required to comply with federal laws that specify that residents receive a high quality of care. In response to reports of widespread neglect and abuse in nursing homes in the 1980s, the Congress, in 1987, enacted legislation to reform nursing home regulations and require nursing homes participating in the Medicare and Medicaid programs to comply with certain requirements for quality of care. The legislation, included in the Omnibus Budget Reconciliation Act of 1987 (OBRA 1987), also known as the Nursing Home Reform Act, specifies that a nursing home "must provide services and activities to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident in accordance with a written plan of care..."

Care Requirements

To participate in the Medicare and Medicaid programs, nursing homes must be in compliance with the federal requirements for long term care as prescribed in the U.S. Code of Federal Regulations (42 CFR Part 483). Under the regulations, the nursing home must:

1. Ensure that all alleged violations involving mistreatment, neglect or abuse, including injuries of unknown source . . . are reported immediately to the administrator of the facility and to other officials in accordance with State Law through established procedures (including to the State Survey and Certifications Agency). See 42 C.F.R. Section 483.13(c)(2).

2. Ensure that

   1. The resident's environment must remain as free of accident hazards as is possible; and
   2. Each resident must receive adequate supervision and assistance devices to prevent accidents. See 42 C.F.R. Section 483.25(h).

3. Provide services by sufficient number of each of the following types of personnel on a 24-hour basis to provide nursing care to all residents in accordance with resident care plans:

   1. Except when waived under paragraph (c) of this section, licensed nurses; and
   2. Other nursing personnel. See 42 C.F.R. 483.30(a)(1).

4. Conduct an assessment after a significant change in the resident's condition; See 42 C.F.R. 483.20(b)(4)(iv).

5. Develop a comprehensive care plan that includes measurable objectives and timetables to meet a resident's medical, nursing, mental and psychosocial needs that are identified in the comprehensive assessment. The Plan of Care must deal with the relationship of items or services ordered to be provided (or withheld) to the facility's responsibility for fulfilling other requirements in these regulations. See 42 C.F.R. 483.20(d)(1) Comprehensive Care Plans.

6. Provide each resident with the necessary care and services to attain or maintain the highest practicable physical, mental, and psychological well being, in accordance with the comprehensive assessment. See 42 C.F.R. 483.25.

7. Exercise adequate means to help keep the resident free from infection. See 42 C.F.R. 483.65.

8. Promote care for residents in a manner and in an environment that maintains each resident's dignity and respect in full recognition of his or her individuality. See 42 C.F.R. 483.15(a).

9. Assure that the resident has the right to be free from any physical or chemical restraints imposed for purposes of discipline or convenience, and not required to treat the resident's symptoms. See 42 C.F.R. 483.13(a);The facility may only physically restrain a resident (if needed) to treat the resident's medical symptoms. Restraints may not be applied for purposes of the convenience of staff. Restraints, if used, shall be the least restrictive (but effective) method. Attempts and/or consideration of less restrictive physical restraints, assuming physical restraints are needed in the first place, shall be documented. Restraint usage may be only applied upon physician order. The physician order must justify the use of the restraint, the specific type of restraint and the times the restraint is to be used. Restraints are to be checked at least every 30 minutes and the resident is to be released from the restraint at least every two hours with adequate documentation.

10. Follow Physician's Order. See 42 C.F.R. 483.40.

11. The facility shall not neglect or abuse a resident. O.B.R.A. is specific in its definition of what constitutes abuse and or neglect. See 42 C.F.R. 483.13(c).

12. Based on the comprehensive assessment of a resident, ensure that

    1. A resident's abilities in activities of daily living do not diminish unless circumstances of the individual's clinical condition demonstrate that diminution was unavoidable.

       This includes the resident's ability to

       1. Bathe, dress and groom;
       2. Transfer and ambulate;
       3. Toilet;
       4. Eat; and
       5. Use speech, language or other functional communication systems.

    2. Give the resident the appropriate treatment and services to maintain or improve his or her abilities specified in paragraph (a)(1) of this section; and,

    3. Assure that a resident who is unable to carry out activities of daily living receives the necessary services to maintain good nutrition, grooming and personal and oral hygiene. See 42 C.F.R. 483.25(a).

13. Based on the comprehensive assessment of a resident, ensure that

    1. A resident who enters the facility without pressure sores does not develop pressure sores unless the individual's clinical condition demonstrates that they were unavoidable; and
    2. A resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing.

14. Ensure that the resident's medical record be consistent with professional standards. Nursing progress notes shall be sufficient and identify the resident clearly, describe the resident's condition fully and, justify treatment and the results of said treatment. See 42 C.F.R. 483.75(1).

15. Immediately notify the resident's physician and promptly notify the resident's responsible party of all accidents or incidents which have the potential of injury to the resident. See 42 C.F.R. 483.10.

16. Assure that the resident has prompt access to emergency medical services as needed. See 42 C.F.R. 483.40.

17. The facility shall assist a resident who is incontinent of bowel and/or bladder to maintain or regain continence. See 42 C.F.R. 483.25.

18. Have sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care (42 CFR § 483.30).

19. Conduct initially (no later than 14 days after admission) and periodically (after a significant change in the resident's physical or mental condition and, in no case, less often than once every 12 months) a comprehensive, accurate, standardized, reproducible assessment of each resident's functional capacity (42 CFR § 483.20).

20. Develop a comprehensive care plan for each resident that includes measurable objectives and timetables to meet a resident's medical, nursing, and mental and psychosocial needs that are identified in the comprehensive assessment. The care plan must be developed within 7 days after completion of the comprehensive assessment and describe the services that are to be furnished. Also, the care plan must be periodically reviewed and revised by a team of qualified persons after each assessment (42 CFR § 483.20).

21. Prevent the deterioration of a resident's ability to bathe, dress, groom, transfer and ambulate, toilet, eat, and to use speech, language or other functional communication systems (42 CFR § 483.25).

22. Provide, if a resident is unable to carry out activities of daily living, the necessary services to maintain good nutrition, grooming, and personal and oral hygiene (42 CFR § 483.25).

23. Ensure that residents receive proper treatment and assistive devices to maintain vision and hearing abilities (42 CFR § 483.25).

24. Ensure that residents do not develop pressure sores and, if a resident has pressure sores, must provide the necessary treatment and services to promote healing, prevent infection and prevent new sores from developing (42 CFR § 483.25).

25. Provide appropriate treatment and services to incontinent residents to restore as much normal bladder functioning as possible and prevent urinary tract infections and to restore as much normal bladder function as possible (42 CFR § 483.25).

26. Ensure that the resident receives adequate supervision and assistive devices to prevent accidents (42 CFR § 483.25).

27. Ensure that a resident maintains acceptable parameters of nutritional status, such as body weight and protein levels (42 CFR § 483.25).

28. Provide each resident with sufficient fluid intake to maintain proper hydration and health (42 CFR § 483.25).

29. Ensure that residents are free of any significant medication errors (42 CFR § 483.25).

30. Care for its residents in a manner and in an environment that promotes maintenance or enhancement of each resident's quality of life (42 CFR § 483.15).

31. Promote care for residents in a manner and in an environment that maintains or enhances each resident's dignity and respect in full recognition of his or her individuality (42 CFR § 483.15).

32. Ensure that the resident has the right to choose activities, schedules, and health care consistent with his or her interests, assessments and plan of care (42 CFR § 483.15).

33. Ensure that the medical care of each resident is supervised by a physician and must provide or arrange for the provision of physician services 24 hours a day, in case of an emergency (42 CFR § 483.40).

34. Provide pharmaceutical services (including procedures that assure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals) to meet the needs of each resident (42 CFR § 483.60).

35. Assure that the nursing home is administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident (42 CFR § 483.75).

36. Maintain clinical records on each resident in accordance with accepted professional standards and practices that are complete, accurately documented, readily accessible, and systematically organized (42 CFR § 483.75).

In addition to federal laws regulating the quality of care in nursing homes, states have enacted laws as well. The state laws must be at least as stringent at the federal laws. Some states have adopted laws that are tougher than the federal laws.

In short, a nursing home must conduct an initial comprehensive assessment of each resident and periodic reassessments quarterly or as needed if there is a significant change in the condition of the resident. From the assessment, a plan of care must be developed that specifies the necessary care that must be provided. The facility must have sufficient nursing personnel to provide all the necessary care to each resident in accordance with the assessment and plan of care. The nursing home is required to document the assessments, plans of care, and the care provided, in the resident's clinical record. With both federal and state laws regulating nursing homes, almost every aspect of a nursing home's operation and resident care are covered under the regulations. Thus, when a nursing home willfully does not provide required care that results in the deterioration and/or death of the resident, the nursing home may have violated federal and state laws. If the resident's care was being reimbursed by Medicare or Medicaid, then the nursing home may have submit ted false claims to the government.

The standards are found at 42 U.S.C. § 1395i-3, 42 U.S.C § 1396 and the regulations interpreting the Act, Title IV (Medicare, Medicaid, and other Health-Related Problems), 42 C.F.R. part 483 (1994).

The regulations set forth specific criteria governing all aspects of care including, rights of residents, the quality and adequacy of the care, treatment and maintenance of residents, the number and qualifications of staff personnel and even the location, construction and maintenance of the physical facilities.

All nursing homes and/or long term care facilities which receive any Medicare or Medicaid reimbursement funding are subject to Federal O.B.R.A. regulations. As a condition to maintaining or participation in the Federal Medicaid/Medicare Program, skilled nursing facilities and nursing facilities must remain in compliance with all Federal, State and local requirements. The interpretive regulations published in the Federal Register in November of 1994, implemented the provisions of O.B.R.A. 87. In June of 1995, the Health Care Financing Administration(HCFA) published the State Operations Manual which implements the rules and outlines the survey procedures for all surveys begun after July 1, 1995. The Regulations and State Operations Manual outline the proscribed criteria all states must follow to survey nursing facilities for compliance with participation requirements, certifications, and enforcement. Compliance is monitored by routine, unannounced inspections or "surveys" of the facility no less than once every fifteen (15) months. The failure to meet certain requirements will result in a Statement of Deficiencies.

Each state through their State Enforcement Agency operates in conjunction with HCFA to insure proper licensure, monitoring, and enforcement of the provisions. Section 483.75(b), C.F.R., mandates that facilities operate and provide services in compliance with all applicable Federal, State and local laws, regulations and codes, and with accepted professional standards and principles that apply to professionals providing services in the facility.

III. HOW TO ENSURE ADEQUATE CARE WILL BE PROVIDED ONCE YOUR FAMILY MEMBER IS IN A NURSING HOME

If you have a family member already placed in a nursing home, there are steps you can take and problems to look for to help ensure that your family member gets adequate care. If a facility is resistant to your involvement and is uncooperative with you, you need to go to the highest level, usually the Administrator and the Director of Nursing. If you are unsuccessful with the Administrator, you may want to think about transferring your family member to another facility.

You should watch for the following concerning a bedridden family member or family member that needs assistance with daily care:

1. Federal law requires that all patients have a "Plan of Care" developed for them. They should have included the family in the writing of the plan of care. Ask to see the plan of care and read it carefully. Obtain a copy and keep it with you when you visit your family member in order to verify that the required care is being provided. Also ask the Director of Nursing if the Certified Nursing Assistance (CNA), who takes daily care of your family member, sees the care plan to know what type of daily care is needed. Many nursing homes do not allow the CNAs to see the care plan and the CNAs can be clueless to the special needs of your family member.

2. Ask how many Certified Nursing Assistants (CNAs) are on the morning shift, afternoon shift, and evening shift and compare that to the total number of patients. If the ratio is more than 9 patients per CNA, you need to make sure that you visit as much as possible to know that your family members's needs are being met.

3. Make sure that your family member is drinking enough water and eating well. Don't always rely on the staff telling you your family member is eating "just fine" or the CNA charting on how much each resident is eating because they can be notoriously inaccurate. Make sure that you visit at mealtime and check the food. Also make sure that cold water and other drinks are available for your family member and encourage them to drink a lot of fluids. Nutritious food and enough fluid intake is vital to help prevent diseases and to keep skin from deteriorating and breaking down. Dehydration and malnutrition can also cause confusion and dementia which could even be misdiagnosed as Alzheimer's disease.

4. If your family member is unable to feed himself or herself and/or unable to get their own drink, you must be very vigilant. Malnutrition and dehydration can cause other diseases that are life threatening, including urinary track infections, kidney failure, skin breakdown and can lead to decubitus ulcers (bedsores), confusion and dementia, and a weakened immune system.

5. If your family member is fed in the dining room, watch to see how many CNAs or feeding assistants there are to the number of residents. Also watch how they feed the residents. If the CNA is rushed, he or she will try to quickly shovel the food down a resident's throat. This can cause choking and aspiration that can lead to aspiration pneumonia.

6. You need to closely watch for any weight loss by your family member. Do not rely on the nursing home's stated weight because sometimes they fudge on the weight to hide weight loss. Good places to check for weight loss is the upper arm and calves. Aging people tend not to lose weight around the abdomen. To check for dehydration, you should look at skin tone and dryness in the mouth and lips, along with pinching the skin on the forehead or the sternum. If the skin sticks together and leaves a ridge, there could be a dehydration problem. If you suspect there is a problem, have your doctor run blood tests that determine dehydration and malnutrition such as the albumin level in the blood.

7. If your family member is immobilized in bed or in a wheel chair, they are at risk for bedsores (pressure sores or decubitus ulcers). Pressure sores start out as reddened areas that do not blanch when pressed and then cause the underlying muscle and veins to break down, bleed and become infected. Federal law says that residents are not to develop pressures sores while at a facility. It is a direct sign of lack of care and you should meet with the Director of Nursing if a pressure sore appears and ask about her plan of correction for healing and prevention. Do not let pressures sores go untreated or they could cause a life threatening situation.

8. If your family member needs assistance with using the toilet, the facility with insufficient staffing will have the motivation to get him or her in diapers instead because it is less work. Insist that your family member is taken to the toilet regularly and if he or she is starting to have accidents, complain that it is because the call light is not being answered instead of an incontinence problem. This can also lead to urinary tract infections. Federal regulations state the residents are to become as self functioning as possible including bowel and bladder retraining programs.

9. If your family member starts showing signs of confusion and/or dementia after entering the nursing home, don't let the nurses or a doctor convince you that these symptoms are just part of normal aging. These symptoms are usually caused by some type of disease or can be triggered by malnutrition or dehydration. Insist that the facility and the doctor run blood tests to rule out disease or malnutrition and dehydration.

10. Make sure the facility is following through with any rehabilitation they have promised.

11. Have someone in your family visit the facility often during the evening or late night shift when the staffing is at its lowest.

12. Make sure that your family member is fully bathed at least three times a week. These baths are very important to prevent skin breakdown especially if he or she is immobilized.

13. In general, let the facility know that you are watching them and that you know what they are required to do. Don't be afraid to let them know that you are aware of the state and federal regulations and expect the facility to follow them.

14. Watch for any signs of pneumonia or other infectious diseases such as staph or scabies because infection control is usually poor in many nursing homes. Nursing homes are often reluctant to call doctors until symptoms become serious. It is important for you to insist on a doctor's diagnosis before the problem becomes life threatening. Older, bedridden residents have a harder time recovering from illnesses if they are not treated promptly. Don't let them tell you that it is "the time" for your family member to die. We have seen neglect cause life threatening illnesses that were treated in time in a hospital and the family member has lived years afterwards with a good quality of life, once proper care was given.

IV. ABOUT NURSING HOME ABUSE AND NEGLECT

With over 1.5 million elderly and dependent adults now living in nursing homes throughout the country, abuse and neglect has become a widespread problem. Even though some nursing homes provide good care, many (far too many) are subjecting helpless residents to needless suffering and death. Most residents in nursing homes are dependent on the staff for most or all their needs such as food, water, medicine, toileting, grooming, stimulation and turning - almost all their daily care. Unfortunately, many residents in nursing homes today are starved, dehydrated, over-medicated, and suffer painful pressure sores. They are often isolated, ignored and deprived of social contact and stimulation. Because of insufficient and poorly trained staff commonly found in nursing homes (a common problem caused by corporate owners who are more concerned about their bottom line than the care they should be providing), care givers are often overworked and grossly underpaid that often results in rude and abusive behavior to vulnerable residents who beg them for simple needs such as water or to be taken to the bathroom.

Abuse and neglect in a nursing home includes the following:

Abuse includes:

1. Assault

2. Battery

3. Sexual Assault

4. Sexual Battery

5. Rape

6. Unreasonable physical constraint, or prolonged or continual deprivation of food or water

7. Use of a physical or chemical restraint or psychotropic medication for any purpose not consistent with that authorized by the physician

Neglect means the negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care which a reasonable person in a like position would exercise.

Neglect includes, but is not limited to:

1. Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter.

2. Failure to provide medical care for physical and mental health needs.

3. Failure to protect from health and safety hazards.

4. Failure to prevent malnutrition.

5. Failure to prevent the development of decubitus ulcers.

Federal and State laws require that nursing homes develop a plan of care and employ sufficient staffing to provide ALL the care listed on the care plan. Because most corporate owned nursing homes today are not sufficiently staffed, they can not provide ALL the care listed on the care plan. Consequently, residents are not taken to the toilet when necessary, they are often left lying in urine and feces, develop painful and life threatening pressure sores (decubitus ulcers), are not fed properly, are not given sufficient fluids, are over-medicated or under-medicated, are dropped causing painful bruises and fractures, are not cleaned or groomed, are ignored and not included in activities, are left in bed all day, are not turned, call lights not answered promptly or not at all, etc., all forms of neglect.

V. HELPFUL WEBSITES

1. Texas Long Term Care Regulatory - www.dhs.state.tx.us/lter

2. Texas Dept. of Human Services/Long Term Care Policy - http://ltc.dhs.states.us./policy/ltc-pol.htm

3. Secretary of State of Texas - www.soc.state.tx.us/tac

4. Quality Reporting Systems - www.dhs.state.tx.us/providers/grs/index.html

5. Health Care Financing Administration - www.hcfa.gov/

6. www.medicane.gov./nursinghome.asp

7. State Bar of Texas: Nursing Home Rights - www.texasbar.com/pvbinf/lega/info/aging

8. American Association of Retired Persons - Rights of Nursing Home Residents - www.aarp.org/getans/consumer/rights.html

9. Texas Advocates for Nursing Home Residents - www.tanhr.org/

10. Nursing Home Abuse and Neglect Info Center - www.nursinghomeabuse.com/index.html

11. U.S. Code of Federal Regulations

12. Nursing Home Reform Act of 1987

13. Tx Health and Safety Code