Originally Published by Long Term Care Community Coalition
www.ltccc.org
Fall 2006

 

Can the Law Protect Nursing Home Residents?

The crisis in the nursing home system is well known.Throughout New York State and across the country,
there is widespread suffering and even prematuredeaths resulting from poor nursing home care.
According to a recent government report, 98% of NewYork nursing homes don’t even meet the minimum
staffing levels necessary to give basic care to residents!As a result of insufficient staffing and other systemic
problems, nursing home residents are harmed.When there isinsufficient time to take residents to the bathroom, they
are forced to wear diapers unnecessarily or, even worse, frequently wind up sitting for hours in their own waste. When
there is not enough time to properly feed residents, they often go hungry. Remarkably, malnutrition and
dehydration are leading causes of illness and death among nursing home residents, an especially striking
statistic given that this tragedy is occurring in the 21st century, in the world’s wealthiest country, in New York State.
LTCCC REPORT: Everyone has heard how terrible nursing homes can be. Unfortunately, too
many of us believe that ‘that’s just how things are’ or that nothing can be done to make things better – bad
treatment is “to be expected.” In fact, the federal Nursing Home Reform Law, which was passed almost
20 years ago, changed those expectations significantly. Last year, LTCCC embarked on a year-long national
study, with funding from the Robert Sterling Clark Foundation, to investigate what happened to that law
and what was being done to make its promise a reality. The goal of our study was to identify the central
protections available to nursing home residents and give stakeholders – residents, family members, long
term care ombudsman – as well as government leaders information and insights in to how they can help
achieve the promise of the law.

THE LAW: The Nursing Home Reform Law, commonly referred to as OBRA 87 (it was part of the
Omnibus Reconciliation Act of 1987), established strong legal mandates for nursing homes. Under OBRA 87:
• “Each resident must receive and the facility must provide the necessary care and services to attain or
maintain the highest practicable physical, mental, and psychosocial well-being…”
• Nursing homes are required to ensure that ‘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…(i) Bathe, dress, and groom; (ii) Transfer and ambulate; (iii) Toilet; (iv) Eat; and (v) Use speech, language, or other functional communication systems.’

• Nursing homes are responsible for ensuring that
every resident receives ‘appropriate treatment and
services to maintain or improve his or her abilities
specified [above].
• Any resident unable to carry out activities of daily
living must receive ‘the necessary services to maintain
good nutrition, grooming, and personal and oral
hygiene.
Nursing homes which are not providing theseservices and protections are in violation of federal
law. And state oversight offices which are not makingsure that the law is fully enforced are not doing
their job. But what can a resident, family member or friend do?

IDEAS FOR ACTION: LTCCC’s report - available at www.nursinghome411.org – contains details and
resources on legal protections for nursing home residents. The report provides information on actions and
innovative activities taken across the country to overcome challenges to enforcing those legal protections.
The report is divided up into specific sections identifying legal cases that residents can make when the system
has failed to protect them, specific state activities and state law provisions, ombudsman activities that
have overcome systemic obstacles to ombudsman advocacy and interviews with individuals who have
been innovative in tackling nursing home quality and accountability problems. For the consumer, this report
can be used to find out about residents’ rights and protections, and what they can do to initiate change (both
personally and in their community).

A sampling of ideas & activities:
• Deborah Truhowsky, an attorney in private practice in New York, was selected to be interviewed
because she is using a section of the NY State Public Health Law as a basis for holding nursing homes
accountable. This law creates a private right of action for nursing home abuse; it provides that any residential
health care facility that injures a resident by virtue of violating any federal statute or code shall be liable to that resident in damages. Ms. Truhowsky spurns the idea that injuries such as bruises, falling and bedsores are unavoidable consequences of growing older or unavoidable conditions in long term care facilities. Ms. Truhowsky is unique because more common
grounds for suing a nursing home include: negligence, wrongful death, intentional tort, negligent hiring and supervision and breach of statutory/regulatory rights, duties or responsibilities.

• Massachusetts’s attorney general’s office has anElder Abuse Project. This project seeks to improve the
capacity of law enforcement, including police, prosecutors, victim-witness advocates, probation officers,
and elder services professionals to more effectively recognize, investigate and prosecute a wide range of abuse
perpetrated against older individuals.
• The DC Ombudsman filed a lawsuit to implement a model transfer and discharge plan.
• The New Mexico Ombudsman went undercover in nursing homes – which led to new state law to permit this type of activity.
• Washington State’s Long Term Care Ombudsman Program was instrumental in promulgating legislation that makes mistreatment of the elderly a criminal offense. Washington’s Ombudsman Program also has access to an attorney and is able to use him as a resource to strengthen their advocacy efforts.

Staff
Richard J. Mollot, Esq., Executive Director
Cynthia Rudder, PhD, Director of Special Projects
Sara Rosenberg, Office Manager
Meghan Shineman, Public Policy Intern
Board of Directors
Geoff Lieberman, President
Karen Manning, Vice President
Judy Brickman S. Deborah Majerovitz
Nora O’Brien Martin Petroff, Esq.
Alan Swerdloff Deborah Truhowsky, Esq.
Phone (212) 385-0355 • Fax (212) 239-2801
website: www.ltccc.org