March 2, 2007
NEGLIGENCE IN NURSING HOMES
By: Saul Spigel, Chief Analyst
You asked about laws that address negligence or neglect in nursing homes, particularly those relating to reporting, enforcement, and penalties. You were especially interested in laws that involved agencies other than the Department of Public Health and asked whether the police could enter a nursing home to make an arrest.
Negligence is a legal term that describes a failure to exercise care. Most of the state's laws addressing care for nursing home residents use the term “neglect” rather than negligence. The principal laws in this area concern investigations by the Department of Social Services (DSS) and the chief state's attorney. Laws concerning the nursing home bill of rights, the long-term care ombudsman, and Department of Public Health (DPH) licensing investigations also apply.
DSS can investigate reports of suspected neglect and abandonment of nursing home patients made by statutorily mandated reporters and others. If it determines that neglect or abandonment occurred, it must notify the chief state's attorney who must investigate to determine whether to bring criminal charges. If the investigation indicates that nursing home licensing requirements may have been violated, DSS must refer the compliant to DPH.
State law makes it a crime to abuse a person age 60 or older. “Abuse” under this law is any repeated (occurring two or more times) act or omission that causes physical injury or serious physical injury. A person convicted of elder abuse is subject to a prison term of up to 10 years, a fine up to $10,000, or both, depending on the severity of the crime. We could find nothing in state law that would prevent a police officer from entering a nursing home to make a lawful arrest for elder abuse (or any other crime).
State and federal law enumerate nursing home patients' rights, which include the right to be free of abuse. People who believe their rights have been violated can complain to DSS or DPH. The Long-Term Care Ombudsman Office helps nursing home residents resolve complaints about actions, inactions, or decisions that may adversely affect their health, safety, welfare, or rights. DPH inspects nursing homes and investigates complaints against them and licensed professionals who work in them. It can impose civil penalties on a home and discipline professionals whose conduct was negligent.
Ordinary negligence is the failure to exercise such care as most people ordinarily exercise under the same or similar circumstances (57 Am. Jur. 2d Negligence, § 98). It is doing something that a prudent and reasonable person would not do, or not doing something that a reasonable person would do under the same circumstances. The standard focuses on what a person of ordinary prudence exercising due care would have seen, believed, and done under the circumstances (Connecticut Law of Torts, § 30). Gross negligence, on the other hand, generally signifies more than ordinary inadvertence or inattention, but less than conscious indifference to consequences (Prosser on Torts, Gross Negligence).
Willful and wanton negligence usually means that the actor has (1) intentionally done an act of unreasonable character and (2) disregarded a risk so obvious that he or she must be assumed to have been aware of it, and so great as to make it highly probable that harm would follow (Second Restatement of Torts, § 500). Willful or wanton negligence is an action or omission, which amounts to an extreme departure from ordinary care in a situation where a high degree of danger is apparent. It must be more than mere thoughtlessness, inadvertence, or simple inattention (Prosser on Torts, Degrees of Negligence).
LAWS ADDRESSING NEGLECT IN NURSING HOMES
DSS Nursing Home Investigations (CGS §§ 17b-407 & 408)
Reporting. State law requires certain health professionals, nursing home staff, and others to report to DSS within 72 hours of reaching a reasonable cause to suspect or believe that an elderly person residing in a nursing home has been abused, neglected, exploited, or abandoned. The law permits anyone else who believes or suspects neglect or abuse has occurred to file a complaint with DSS about the home.
(This law does not define abuse, neglect, exploitation, or abandonment, but a related law that governs DSS protective services for elderly people does. Under that law, “neglect,” as it applies in a nursing home, refers to an elderly person who is not receiving necessary services from the responsible caretaker. “Abandonment” means a caretaker's deserting or wilfully forsaking an elderly person or forgoing, withdrawing, or neglecting his or her duties and obligations to the elderly person (CGS § 17b-450(4))).
A report must include the elderly person's name and address; the nature and extent of the abuse, neglect, exploitation, or abandonment; and any other information the reporter believes may be helpful. A copy of the reporting form is available at http://www.ct.gov/dss/lib/dss/pdfs/w-410.pdf.
Investigating. Upon receiving a report or complaint, DSS must determine if reasonable cause exists to investigate. It must notify the person making the report within five days of receiving it if does not find cause. If it does find cause, it must begin the investigation within 10 days and complete it within five days (i.e., 15 days after receiving the report) and issue its findings.
If DSS determines the person has been abused, neglected, exploited, or abandoned, it must notify the chief state's attorney who must investigate to determine whether to bring criminal charges. If the investigation indicates that nursing home licensing requirements may have been violated, DSS must refer the compliant to DPH.
Elder Abuse (CGS §§ 53a-320 to -323)
State law makes it a crime to abuse a person age 60 or older. “Abuse” under this law is any repeated act or omission (an event that occurs two or more times) that causes physical injury or serious physical injury. The nature of the crime depends on whether the person acts intentionally, knowingly, or recklessly and the extent of injury that results. By law, “physical injury” means impairment of physical condition or pain; “serious physical injury” means an injury that causes (1) substantial risk of death, (2) serious impairment of health or organ function, or (3) serious disfigurement (CGS § 53a-3).
A person who intentionally commits abuse and causes serious physical injury is guilty of a class C felony, which is punishable by one to 10 years in prison, a fine up to $10,000 or both. A person who (1) intentionally commits abuse and causes physical injury or (2) knowingly commits abuse and causes serious physical injury is guilty of a class D felony, which is punishable by one to five years in prison, a fine up to $5,000, or both. A person who knowingly or recklessly commits abuse and causes physical injury is guilty of a class A misdemeanor, which is punishable by up to one year in prison, a fine up to $2,000, or both.
Nursing Home Patients' Bill of Rights (CGS § 19a-550(b))
Federal and state law each gives nursing home patients specific enumerated rights. Among these is the right to:
1. receive quality care and services with reasonable accommodation of individual needs and preferences, except when this would endanger the individual's health and safety;
2. be treated with consideration, respect, and full recognition of the patient's dignity and individuality, including privacy in treatment and care for his or her personal needs;
3. be free from mental and physical abuse, corporal punishment, involuntary seclusion, and physical or chemical restraint imposed for disciplinary purposes or convenience and not required to treat the patient's medical symptoms; and
4. file a complaint with DSS or DPH about patient abuse, neglect, or misappropriation of patient property.
The nursing home bill of rights gives any patient a private right of action against a nursing home the patient believes has negligently deprived him or her of any right or benefit the bill of rights confers.
Long-Term Care Ombudsman (CGS §§ 17b-400 to -417)
The Long-Term Care Ombudsman Office in DSS helps patients resolve complaints about nursing homes. Ombudsmen advocate on behalf of patients who complain about a facility's actions, inactions, or decisions that may adversely affect their health, safety, welfare, or rights. One state and six regional ombudsmen carry out these and other duties, assisted by over 100 volunteers.
DPH Licensure and Certification Investigations
Nursing Home and Nursing Home Administrators. DPH licenses nursing homes and nursing home administrators. Agency staff periodically inspect nursing homes for compliance with state licensing and federal Medicaid and Medicare certification requirements. DPH can also investigate if it receives a complaint about a home.
If an inspection or investigation reveals that a nursing home has violated certain nursing home statutes or regulations, DPH must issue a citation. Among the regulations that can trigger a citation is one that requires each home to employ enough nurses and nurse's aides to assure that each patient (1) receives treatment, therapies, medications, and nourishment as prescribed in the patient's care plan; (2) is kept clean, comfortable, and well groomed; and (3) is protected from accident, incident, infection, or other unusual occurrence.
Violating this regulation is a Class B violation, that is, one that presents a probability of death or serious harm. If, after a conference or formal hearing, DPH upholds the citation and issues a final order, it may impose a civil penalty of up to $3,000 for each violation. The penalty is deducted from the home's next Medicaid reimbursement (CGS §§ 19a-524 to -529).
Other Licensed and Registered Professionals. DPH licenses various categories of health care professionals who work in nursing homes (e.g., nurses, occupational and physical therapists, social workers). It receives complaints about these providers and investigates them. If after an investigation and any required hearing, DPH or the board governing a profession determines a provider's conduct was negligent, it may discipline the provider in various ways. These include suspending or revoking the provider's license, limiting the provider's practice, and imposing a civil penalty up to $10,000 (CGS §§ 19a-14, 19a-17).
DPH registers nurse's aides and investigates abuse and neglect complaints about them. If, after an investigation, DPH determines the aide abused or neglected a patient, it enters its findings on the state nurse's aide registry, which homes must check before hiring anyone as an aide (CGS § 20-102aa to -102ee).