The importance of a Care Plan in your nursing home abuse case

Have you found yourself in the unfortunate position of suspecting or confirming nursing home neglect against your loved one?

It’s estimated that over 20% of residents experience neglect at least once each year, but according to the Nursing Home Abuse Center only 1 in every 57 cases is reported.

There is never an excuse for nursing home neglect or abuse. But a care plan can be a key document in presenting and proving neglect or abuse for those who are pursuing a legal claim against a nursing home.

Read on to learn more about why nursing home neglect happens in Arizona, and what you can do if you are worried about a loved one’s standard of care.

Nursing home compliance and the law

Nursing home standards of care fall under federal law per the Centers for Medicare and Medicaid (CMS) and the Nursing Home Reform Act (NHRA).

Every skilled nursing facility and nursing facility supported by Medicare or Medicaid is required to follow a certain set of standards per 42 CFR Part 483.

Under federal law, each state has a Long Term Care Ombudsman, who is there specifically as a point of contact for consumers who have concerns about long term care facilities.

Under these regulations, the state is obligated to conduct regular surveys and investigations to ensure compliance. Part of this process involves developing individual care plans, and sending comprehensive care plans to nursing home regulators.

Care plans are essentially the basis with which nursing homes are evaluated. If standards are not met, the nursing home is at risk of losing their funding.

What are your loved one’s rights when they are in the home?

A nursing home resident’s bill of rights is a part of the laws and regulations outlined above. All care homes are required to follow responsibilities to protect resident rights, including topics like:

• Type of care
• Consent issues
• The right to welcome or refuse visitors
• Participate in development and review of care plans
• Privacy and security
• Freedom from abuse
• Freedom from restraints
• The right to refuse medication

Violation of such rights can be reason to file a lawsuit, and family members may act on the behalf of residents in certain situations. But it’s important to know that state laws can impact the ability for people to file civil suits.

The nursing home contract may also contain details which make it difficult to pursue a lawsuit against the home, even if it violates their basic human rights. For instance, in this case as reported in Time, an elderly nun in Alabama was raped but could not take the case to civil court, despite the fact that there was plenty of evidence.

This is because the contract signed by the resident contained a pre-dispute binding arbitration agreement clause, which means that the resident is obligated to forego their basic rights.

According to the above article, it’s estimated that 90% of nursing home chains’ contracts might contain such arbitration agreements, which is just one of many reasons why you should have a trustee legal representative on your side if a loved one is in a nursing home.

Why a comprehensive care plan is crucial

If your parent or loved one is in a long term care home or nursing home, you should have been involved in the development of their care plan when they were first admitted.

The care plan is a comprehensive overview of the patient’s state of health and well being, and what it takes to maintain optimal health over time.

It will address issues related to:

• Risk prevention
• How well the patient can care for themselves
• Progression of care
• Health and wellness goals
• Monitoring schedule
• Details about ongoing care
• When and how often the plan itself needs revision
• Emergency procedures

Liable parties may include the home itself, the management company, and any of the care team that is involved; however, determining who is ultimately liable can be tricky.

What happens when a care plan fails?

Ignoring or failing to follow a care plan is a type of neglect.

Some examples of nursing home injuries which can follow a failure in care planning include:

• Failure to turn an individual regularly, leading to bedsores
• Failure to follow meal instructions (such as pureeing food), leading to choking
• Infections resulting from a failure to follow proper hygiene or toileting procedures
• Malnutrition from improper feeding procedures
• Improper administration of medication

The root cause of neglect or abuse can also be linked with gaps in the care plan development, or a lack of communication about the plan.

For instance, if a certain aspect of caretaking is being missed regularly and by different staff members, then it is likely that the fault is in the care plan, rather than, for instance, neglect from a specific individual.

Identifying gaps in the care plan

Litigators use comprehensive care plans as a guide to determine the cause of neglect or abuse, and essentially win a settlement or court case.

Here are some questions that they would ask as they use the care plan for reference:

• How accurate was the initial assessment of the patient’s health done on admittance? 

A failure to address potential risks (eg: of falling) at this early stage, the rest of the care plan will not have been developed as needed.

• Was a formal care plan developed and submitted to the CMS? 

If the assessment of the resident was thorough and accurate, then a gap was likely in the development and/or implementation of the care plan.

• How often was the care plan reviewed and updated and did this match the resident’s needs per their individual health status and speed of changes? 

The care plan should be reviewed every 90 days, unless a patient has a condition that is expected to progress more quickly. Reviews and updates should take place in accordance with the speed of changes of the patient’s condition.

• How was the plan, including updates, communicated to various members of the care team? 

It is essential that an effective communication plan process is agreed on by all staff members so that they are clear on every update, change, and problem. For instance, one care team member might require email updates, whereas another may require hard copies.

• What actions did the care team take to ensure that the plan was carried out on a daily basis? 

Mandatory checklists, patient reports, and other types of confirmations should be in place in the initial development of the plan.

• How was the care plan itself evaluated? 

The care plan should contain a process of evaluation to assess its effectiveness, and this assessment should be done regularly.

Why are care plans not followed?

There is no “good” reason why care plans are not followed, there is simply no excuse for neglect or abuse of any kind.

However, there are a whole list of factors which could be considered in a claim and help determine who is ultimately liable. These include:

• Fatigue and burnout (for instance from overtime)
• Lack of (clear) directives from supervisors
• Understaffing
• Lack of staff background checks
• Residents being too scared or ashamed to report
• Overtime or limited time
• Poor supervision or training
• Lack of trained nurses
• High turnover
• Unprecedented outbreaks of diseases (eg: covid)

A thorough investigation and evaluation of the care plan can point to inadequacies with regards to communication, training, and so on.

This is especially important for residents with limited or no mobility who are highly dependent on caregivers even from an hour-to-hour basis at times, eg: turning to prevent bedsores.

Neglect can happen in error but can still be the cause of a serious lawsuit. The care plan is important in helping to determine whether or not a lawsuit should be claimed, and on what grounds.

In more severe cases, physical or emotional abuse may be at play behind the scenes, and the care plan can offer important clues as to what went on behind closed doors.

What steps should you take to report an incident of neglect or abuse?

If you have a problem with a nursing home in Arizona, you should advise management and the

Arizona Long-Term Care Ombudsman. Two other bodies which should be notified include the Bureau of Long-Term Care Licensing Arizona and Arizona Adult Protective Services (APS).

Typically, nursing home abuse will lead to a civil claim against the nursing home company, with violations such as:

• Negligence
• Wrongful death
• Malpractice
• Breach of contract

Sometimes it can be difficult to determine if and how much financial compensation a plaintiff should be awarded, in part because of the non-economic nature of pain and suffering. But in the case of a settlement, typically the amount awarded is more than enough to cover medical and legal expenses.

If you know of a problem with a lack of care, neglect or abuse in an Arizona nursing home, you should report it to the institutional bodies listed above. Then evidence is gathered and evaluated, this is where an attorney comes in.

Settlement negotiations follow, which can last several months, and if no agreement is reached it will go to trial.

A qualified nursing home abuse attorney will advise and guide you regarding formal reporting procedures pertinent to your specific case.

Get help with your nursing home abuse case

There are many laws and regulations surrounding nursing homes in Arizona and the US, yet neglect and abuse are all too common.

Unfortunately, state investigations and other protective measures can be lengthy and complex, only adding to your current stress.

Having a trusted attorney on your side to help ease your burden and ensure you get the compensation you deserve is essential.

If you plan to file a nursing home neglect claim in Arizona, we’re here to help. Our compassionate team of expert attorneys can help you ensure that your elderly loved ones are safe, while handling the complex and stressful legal process.

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Care Plan FAQs

What if I have noticed suspicious activity at a care home. Who should I contact?

You should contact the following organizations.

• Bureau of Long-Term Care Licensing Arizona
• Arizona Long-Term Care Ombudsman 
• Adult Protective Services
• Arizona Attorney General’s Office

How do I get a copy of my loved one’s medical records?

You will need to fill in and return a HIPAA release form.

Can a care plan be used as evidence for a nursing home abuse or neglect claim?

The care plan itself is not legally evidence. However, it acts as the basic piece of documentation which is necessary for determining the root cause of neglect or abuse.