More than 1.4 million Americans live in nursing homes and unfortunately thousands suffer a fall each year.
The Center for Disease Control (“CDC”) estimates between 50-75% of elder patients suffer a nursing home fall each year.
This can feel even scarier when they are in a nursing home and away from you, as the consequences of a fall can range anywhere from mild pain to death.
Thankfully federal and state governments have both enacted legislation with the sole purpose of protecting the residents at nursing home facilities.
In this article we’ll introduce you to what laws have been enacted, and what they mean for the protection of your loved ones.
Timeline of Nursing Home Reform Laws:
- 1987 (Federal) Congress enacts the Federal Nursing Home Reform Act (FNHRA), requiring nursing homes that participate in Medicare and Medicaid to comply with certain quality of care rules (outlined below).
- 1988 (State) Arizona enacts the Adult Protective Services Act (APSA), legislation to further protect elders and other vulnerable adults from abuse and neglect.
- 2009 (State) Wallace v. Heilman, Ariz. App. (2009). The Court found that, under Adult Protective Services Act, voluntary intoxication can cause a party to become a vulnerable adult, for example by taking medication, and that comparative fault may be used in determining damages to the injured party in these circumstances.
- 2010 (Federal) The Elder Justice Act requires reports of incidents of abuse or neglect, establishes a background check for employees, and creates The Elder Justice Coordinating Council.
What does this legislation mean for you?
These laws are designed to protect nursing home residents and reduce the number of falls as a result of negligence or improper care.
This means if a fall does occur that you can take action on behalf of your loved one, and falls and fall-related injuries are a leading cause of lawsuits against nursing homes.
Here is a breakdown of the laws and what they mean for nursing home residents and potential litigants.
Federal Nursing Home Reform Act (FNHRA) (1987)
Purpose: To protect the elderly from abuse and neglect after a review from the Institute of Medicine of the current state of nursing homes showed that neglect and abuse were common.
Understanding the Legislation:
- Nursing facilities must create a comprehensive care plan to meet the physical, medical, and psychological well-being. 42 USC §1395i-3(b)(2).
- Must conduct an assessment of each resident’s functional capacity. 42 USC §1395i-3(b)(2).
- Nursing homes must “prevent the deterioration of a resident’s ability to bathe, dress, groom, transfer and ambulate”. 42 CFR §483.25.
- Nursing care facilities must have adequate numbers of properly qualified staff members to provide for and meet the residents’ needs. 42 USC §1395i-3(b)(4).
- Requires nursing care facilities to maintain adequate supervision and devices to prevent falls. 42 USC §1395i-3(b)(6)(A).
- Established a patient’s right to “Accommodation of Needs,” and to be informed of this right. 42 USC §1395i-3(c)(1)(A)(v) and (c)(1)(B).
What it means:
- Due to the funding that is provided to these facilities through Medicare and Medicaid, the federal government is able to regulate the care through a regular surveying process. 42 USC §4202.
- If any nursing facility is found to have failed to meet the requirements of the FNHRA, the facility be assisted by the government to remedy the deficiencies, or the facility may lose government funding. 42 USC §4203.
- FNHRA does not clearly authorize private federal cause of action for residents against private nursing homes. Baum v. Northern Dutchess Hosp. & Wingate of Ulster, Inc., 764 F. Supp. 2d 410 (N.D.N.Y. 2011), referencing 42 USCS §§ 1396r (“Requirements for nursing facilities) and 1983 (“Civil Action for deprivation of rights.”) This may mean that bringing a case, personally, due to violations of this act, may be unsuccessful. That responsibility lies with the funding governmental agency.
- “Federal nursing home reform standards, joined with existing reimbursement standards have resulted in a steady improvement in the quality of long-term care services.” – American Health Association, et. al. in a letter to Congress, 1995. This is a positive outcome for the FNHRA. Implementation of this Act, and the legislation that follows, provides hope that nursing homes are being held accountable for the care of their patients.
Adult Protective Services Act (APSA)(1988)
Purpose: In an action to further protect vulnerable adults in the state, Arizona enacted the Adult Protective Services act, which applies to any vulnerable person over the age of 18 from “abuse, neglect, or exploitation.” A.R.S. §46-451(A)(10).
Understanding the Legislation: Arizona Revised Statutes §§ 46-451-7.
- Defining abuse as “intentional infliction of physical harm” or “injury caused by negligent acts or omissions.” A.R.S. §46-451(A)(1).
- Protective services workers shall receive reports of abuse… A.R.S. §46-452(A)(1)
- Specifically requires that persons who have responsibility for the care of a vulnerable adult shall immediately report any acts of abuse or neglect that they have a reasonable basis have occurred. A.R.S. §46-454.
- A vulnerable adult whose life or health has been endangered or injured may file an action against any person or employer for causing or permitting the conduct. A.R.S. §46-455.
What it means:
- If a fall was the result of intentional or negligent acts or omissions on the part of nursing home staff, there are possible legal remedies.
- If any of the above sections were violated during the occurrences surrounding the fall, there are possible legal remedies.
Wallace v. Heilman, Ariz. App. (2009)
Purpose: To determine 1) if a voluntarily intoxicated adult is considered a “vulnerable adult” as outlined by the APSA, and 2) if comparative fault may be assessed in determining damages.
Outcome: Intoxication, even voluntary, would cause a person to fall into the category of a vulnerable per the APSA. Comparative fault can be assessed by the trier of fact in determining how the injured party’s own actions affect the damages.
Understanding the case:
- Facts: After a night of drinking, plaintiff went to the home of the defendant, with whom she had a romantic relationship. The two drank to the point of inebriation and then got into an argument. Plaintiff suffered a fall that was either an accident or by an assault by the defendant. Defendant pled no contest to abuse of a vulnerable adult under APSA.
- The court looked to A.R.S. § 46-451(A)(10) in determining that the plaintiff was indeed a vulnerable adult under this section. Here a vulnerable adult is defined as one unable to protect [herself] from abuse, neglect or exploitation by others because of a physical or mental impairment. Therefore, while the impairment was voluntary, she was still in a position where she was unable to protect herself.
- In the appropriate case, the vulnerable adult is similar to a young child, who cannot be found contributorily negligent because the child lacks an age or state of mind to exercise due care.
- “If a person is vulnerable by such voluntary act and then falls down or hurts themselves rather than being attacked by the defendant, the ‘question of recovery by the [person] for injuries caused by his own affirmative acts is essentially a question of contributory negligence and assumption of the risk.’ Del. E. Webb, 151 Ariz. at 169.”
- Comparative fault in determining the injured party’s own actions is allowed to assess damages to the injured party.
What it means: While the aforementioned case is not one that would normally be seen in a nursing home setting, the implications could be crucial in determining fault. Many medications taken by the elderly can have effects similar. The voluntary actions of a loved one that may have resulted in a higher likelihood of a fall, could be used to lessen the available damages.
Elder Justice Act (2010)
Purpose: The implementation of this legislation enacted the first comprehensive legislation at a federal level that addressed neglect, abuse, and exploitation of the elderly.
Understanding the Legislation:
- Dedicated grants to eligible entities in order to use forensic markers to indicate that a case is one of elder abuse, neglect, or exploitation. 42 USC §1397l(d)(1).
- If serious bodily injury occurs, it needs to be reported immediately, but no later than 2 hours. If an event that causes suspicion of crime does not result in serious bodily injury, it must be reported within 24 hours. 42 USC §1320b-25(b)(2).
What it means: The addition of this federal legislation provides better protection and more specific guidelines for any facility that is given funding by the federal government.
Additional State Laws:
- Hospice facilities must be “free from a condition or situation that may cause a patient or an individual to suffer physical injury…” Arizona Title 9. Chapter 10. §818(9)(a).
- There must be a procedure for reviewing reports of: 1) violations of professional standards or laws and 2) activity or practice that poses a risk to health or safety of a patient. A.R.S. § 36-450.01.
- Acts of abuse, neglect and exploitation must be immediately reported to Adult Protective Services. Arizona Title 9. Chapter 10. § 704.
- The National Academies Press. https://doi.org/10.17226/646.