Elder neglect and abuse attorneys at Pintas & Mullins highlight a new health care law in California that requires all nursing home employees to immediately report any incidents of abuse, abandonment, isolation, or neglect of residents.
The abuse of our country’s seniors is perpetuated by the overwhelming failure to report such acts of abuse and neglect. Numerous federal reports illuminate this problem, stating that reports of abuse often never come, are inconsistent, or come too late.
California nursing homes in particular often fail to follow up on facility deficiencies and citations, leading to increased hospitalizations and premature death among residents.
This phenomenon, unfortunately, is not new. The New York Times examined unreported nursing home abuse in 2002, citing numerous federal reports and investigations. The article stated that, not only is abuse not being reported, it is rarely prosecuted as well. A study by the General Accounting Office, found that existing regulations are inadequate, as more than 30% of American nursing homes have been cited for deficiencies that cause direct harm to residents.
Since long-term care facilities do not often share information between states, a facility in one state may unknowingly hire an employee who abused residents in another state. There is currently no national list naming the employees who have abused patients, although the Department of Health and Human Services recommended a similar national registry in 1998.
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Over the years,federal investigations have cited numerous reasons for this failure to report abuse and neglect. Those reasons include fear of retribution among residents and their families, who may be limited financially, and are afraid of being told to leave an assisted living facility. Nursing home managers are often reluctant to report abuse because they are afraid of negative press, which can result in increased fines and decreased enrollment. Employees may fear recrimination or being terminated if they report abuse by a co-worker.
This problem is reinforced by most state’s failure to impose any fines or penalties to nursing homes that fail to report abuse. Federal and state regulations do require the reporting of abuse, mistreatment and neglect, however, if an individual or facility fails to report, there are usually no punishments. According to a New York Department of Health document, it is the Department’s position that a provider will not be cited for failure to report if there was no reason to believe that abuse was occurring. In most cases, this boils down to semantics, and failure to report is never cited even if there was reasonable cause.
The new California legislation is nobly attempting to correct this, rendering all nursing home employees mandated reporters. In many cases, ombudsmen are unable to report incidents of abuse without the consent of the victim, which is often very difficult to obtain. One report found that as many as 75% of residents either refused or were cognitively unable to give consent. The new law requires any incidents resulting in serious injury to be reported to police within two hours, regardless of whether or not an ombudsman is notified.
It will also make failure to report known or suspected abuse a misdemeanor, publishable by a maximum jail sentence of six months and/or a $1,000 fine. The law was authored by Northern California Democrat Mariko Yamada, and took effect January 1st 2013.
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Nursing home abuse and neglect lawyers at Pintas & Mullins hope other states follow suit with these new requirements. Assisted living and long term care facilities must be held accountable for their actions. Legislation like the one enacted in California will both hold facilities responsible and protect the health and safety of our nation’s seniors.