The Nursing Home Conundrum: Advising the Client on Nursing Home Selection, Resident Rights and Actionable Neglect

By Jason Young and David Marks

An elderly client calls you unexpectedly one afternoon. Her husband of 50 years was recently admitted to the hospital for a stroke. The doctors say she can no longer care for him at home. He needs 24-hour supervision in a nursing home and she has two days to find one. She cannot do it alone because of her age and physical disabilities. As her estate planning lawyer, is there anything you can do to help?
Another client informs you that his wife has been stricken with Alzheimer’s disease and has resided at a local nursing home for the past six months. At the beginning, the nursing home was attentive to her needs. Over the last few months, however, the care has progressively deteriorated. His complaints are falling on deaf ears. He feels alone, frustrated, and does not know where to turn. Is there anything you can do to help?
The family of one of your clients comes to your office to collect their father’s will and sign probate documents. They confide that when their father was transferred to the hospital from a local nursing home, the hospital discovered a huge infected bedsore on his hip. He was also dehydrated and malnourished. A hospital staff member indicated that these conditions likely were due to inadequate care at the nursing home. His death certificate lists decubitus ulcers and sepsis as causes of death. They believe their father was mistreated at the nursing home. What would you advise them to do?
This article addresses scenarios like these, and provides lawyers with sources of information to offer guidance to clients on: 1) how to research and select a nursing home; 2) the duties of the nursing home, the rights of its residents and families, and care-related complaints; and 3) how to respond to cases of actionable neglect.

Researching and Selecting a Nursing Home
Selecting the right nursing home for a loved one can be a daunting challenge. This experience is often traumatic for families because of two realities that shape the decision-making process. First, the decision to place a loved one in a nursing home is not typically made in a calm and objective environment. Instead, it is usually made in an environment of turmoil and emotional trauma, with enormous time pressures. Often, families have only one or two days before their loved one is discharged from an acute care setting, forcing them to choose a nursing home in haste and without much research. Second, most families are severely restricted in their choice of nursing homes because of:

• Payor source – Insurance and HMOs often will dictate the nursing homes available. Some nursing homes are private pay and do not accept Medicare or Medicaid;
• Patient needs – Individuals with particular needs, such as Alzheimer’s residents, may be limited to those nursing homes certified to provide specialized care; and
• Geographical location – For practical reasons, a nursing home should be within driving and visiting distance.

We do not profess to be experts in nursing home selection and do not intend to enunciate a standard of conduct for families. But we do have some suggestions that we hope will help.
When faced with a situation like the first scenario described above, a lawyer should direct his or her client to nursing home advocacy groups and quality-of-care data that are maintained for each licensed nursing home. There are several nursing home advocacy groups and consultants that provide resources and support to families, including:

• National Citizens Coalition for Nursing Home Reform (NCCNHR)1
• Texas Advocates for Nursing Home Residents (TANHR)2
• Alzheimer’s Association3
• Advocates for Nursing Home Reform4
• Sid Gerber and Associates5

Each of these groups publishes information on how to choose a nursing home and/or provides assistance with selecting a nursing home.
Advocacy groups and consultants also can also explain how to gather and interpret data regarding the quality of care in nursing homes. Much of this data can be found in the following publications:

• A Consumer Guide to Choosing a Nursing Home, National Citizens Coalition for Nursing Home Reform, Consumer Fact Sheet No. 1, September 2005, available at www.nursinghomeaction.org;
• Long Term Care Resources on the Internet, National Citizens Coalition for Nursing Home Reform, Consumer Fact Sheet No. 1, March 2004, available at www.nursinghomeaction.org; and
• How to Choose a Nursing Home, Texas Advocates for Nursing Home Reform, available at www.tanhr.org.

Additionally, the federal government publishes materials designed to help families locate and select a nursing home, including:

• Guide to Choosing a Nursing Home, Centers for Medicare and Medicaid Services (CMS), CMS Pub 02174, September 2004 available at www.medicare.gov or by calling (800) Medicare; and
• Choosing Long Term Care, Centers for Medicare and Medicaid Services (CMS), CMS Pub 02223, November 2001, available at www.medicare.gov or by calling (800) Medicare.

Other resources that may be helpful in researching the quality of care delivered by nursing homes include:

• Department of Aging and Disability Services (DADS) at www.dads.state.tx.us. DADS is the regulatory agency in Texas that issues nursing home licenses and investigates complaints. Its website can be used to create a list of Texas nursing homes that: (a) accept certain payment sources; (b) can meet the needs of the resident; and (c) are within visiting and driving distance. It also can be used to research recent citations issued by DADS for quality-of-care deficiencies.
• Centers for Medicare and Medicaid Services (CMS) at www.medicare.gov. CMS is the federal regulator of Medicare and Medicaid services. The “nursing home compare” tool on this website allows a consumer to research recent violations of quality of care standards by all nursing homes and compare the nurse and nurse aide to resident staffing levels between facilities.

In 2002, the U.S. Department of Health and Human Services (HHS) released the final results of a ten-year study, which determined that:

• The minimum staffing levels necessary to provide adequate care for residents was 4.1 hours of daily nursing care, including 1.3 hours of daily care by registered and licensed nurses and 2.8 hours by certified nursing assistants; and
• Nursing homes that fell below these standards were significantly more likely to have a high number of residents with life-threatening problems.6

These findings underscore the importance of comparing the nursing staff-to-resident ratios when choosing among nursing homes.

Nursing Home Duties and the Rights of Residents and Families
If you have a client like the one described in the second scenario above where the standard of care has appeared to deteriorate, you can advise him on the laws governing the care in nursing homes, the rights guaranteed to residents and their families, and the published materials from advocacy groups that provide assistance with identifying and preventing abuse and neglect.
The cornerstones of nursing home regulation are Texas Health and Safety Code Chapter 242 and 40 Texas Administrative Code Section 19.7 These regulations memorialize fundamental nursing principles for the elderly and require nursing homes to establish operational systems that ensure the adequate care and safety of residents. For example, parts of 40 Texas Administrative Code Section 19 require systems that ensure:

• Adequate numbers of nursing personnel, including aides and orderlies;
• Adequate amounts of food, supplies, equipment and medication;
• Competent nurses and nurse aides who are screened when hired and who are monitored throughout their employment to eliminate unfit personnel;
• Adequate and systematic planning to create an individualized care plan for each resident;
• Continuous and systematic assessments of each resident and notification of the attending physician and family with changes in condition or incidents;
• A record-keeping system that accurately documents the clinical condition and progress of residents, as well as delivery of care; and
• An adequate quality assurance program that identifies and corrects care deficits.8

Nursing homes are required by law to: 1) provide the necessary care and services to attain or maintain a resident’s highest practicable physical, mental and psychosocial well-being; and 2) care for its residents in a manner and in an environment that promotes each resident’s quality of life.9 Families can use the regulations, as well as the DADS Long Term Regulatory Guide, to help determine whether residents are receiving appropriate care.10 The Long Term Regulatory Guide is a manual used by DADS surveyors during their complaint and licensing surveys. The manual lists care standards for different medical conditions commonly found in nursing home residents and identifies what the nursing home should be doing to treat those conditions.11
Additionally, Texas Human Resources Code Section 102.00312 guarantees nursing home residents certain fundamental rights. Examples include:

• The right to be treated with dignity and respect;
• The right to complain about the care or treatment, without fear of retaliation, and receive a prompt response to resolve the complaint; and
• The right to be free from abuse or neglect.13

Also, the National Citizens Coalition for Nursing Home Reform (NCCNHR) publishes several pamphlets and guides that explain a resident’s rights. Two of these are listed below and are available by contacting NCCNHR:

• Resident Rights: An Overview, Consumer Fact Sheet No. 2, August 2003.
• Communicating the “Right” Way: Residents’ Rights Packet 2000.

Nursing home neglect is defined by state and federal regulations as the “deprivation of life’s necessities of food, water, shelter, or the failure of an individual to provide services, treatment, or care to a resident which causes or could cause mental or physical injury, or harm or death to a resident.”14 Neglect resulting in actual harm to residents is likely caused by: 1) management’s disrespect for these regulations and the failure to provide such essential components and 2) chronic understaffing. Studies reveal that Texas nursing homes not meeting the minimum hourly staffing levels were over 60 percent more likely to cause actual harm to residents than those with appropriate staffing.15 NCCNHR also has published the Nursing Home Staffing Guide: A Guide for Residents, Families, Friends, and Caregivers, which is one resource to help families determine if the staffing levels at their nursing home are adequate.
An important tool to ensure quality care is family advocacy. Family advocacy hinges upon a two-step process: 1) understanding how to gain knowledge about key care issues; and 2) understanding how to communicate that knowledge in a manner that will get the attention of key decision-makers.
NCCNHR and the Texas Advocates for Nursing Home Residents (TANHR) can help families educate themselves about care issues. An excellent resource is Nursing Homes: Getting Good Care There.16 Also, NCCNHR has an entire series of fact sheets available on their Web site that can educate families on how to get quality care.
Another effective vehicle to promote good care is the family council. A family council is an independently organized group consisting of families, legal guardians and friends of residents in the nursing home. The family council works to improve resident care and lend support to each other. State law authorizes the formation of family councils and requires the nursing home to consider and act upon grievances.17
The family council is in a unique position to coordinate the gathering of information regarding poor care. In the course of representing families of nursing home victims, one of the recurrent themes is how isolated, alone, and fearful family members become when struggling to express their concerns about poor care. The family council can serve both as a source of strength and a command post for sharing important information and concerns to other families and facility management. If a facility does not have a family council, any family member can organize one. TANHR has resources that can help a family form one. Additionally, NCCNHR has published Strength in Numbers: The Importance of Nursing Home Family Councils, which is available on its Web site.
In most circumstances, concerns relating to inadequate care initially should be communicated to decision-makers at the facility level. These include the administrator, director of nursing, assistant director of nursing, charge nurse, social worker and activities director. If problems persist, however, the formality of the communications also should increase. It is always best to document serious and ongoing problems.
It goes without saying that the administrator and the director of nursing should be given a full opportunity to correct any problems before additional steps are taken. However, if no remedial action is forthcoming or the safety of the resident is jeopardized, the owners of the facility and DADS should be notified immediately. Ownership information is available on the DADS Web site. A complaint can be made by calling the DADS “complaint hotline” at (800) 458-9858.
Additionally, Texas has an ombudsman program designed to address complaints and advocate for improvements in long term care. There are several ombudsmen located in the Houston area who are trained to assist families in making complaints and improving resident care.18

Actionable Neglect
The civil justice system is not capable of monitoring the day to day nursing home care provided to individual residents. A lawsuit should be a last resort, utilized only when death or catastrophic injury has occurred due to facility indifference. If you have clients like the ones described in the third scenario above where the death may have been caused by the facility’s neglect, you should understand there are certain injuries, conditions, or resident outcomes that are recognized in authoritative medical literature as potential indicators of neglect. In 1986, the Institute of Medicine published a book entitled Improving the Quality of Care in Nursing Homes, which to this day serves as an authoritative text on the quality of care in nursing homes. Significantly, this text catalogs specific injuries and conditions that are generally recognized as markers of neglect or poor care, including:

• Pressure sores (also known as decubitus ulcers or bed sores);
• Dehydration;
• Malnutrition and rapid weight loss;
• Contractures and fecal impaction; and
• Overwhelming sepsis.19

Certainly, this is not an all-inclusive list. Other problems occur that are also suggestive of neglect, such as: a) residents lying in their own urine or feces for extensive periods of time; or b) an assault by an employee or a resident who was known to be dangerous. Should any of these circumstances occur, further investigation should be undertaken to determine whether these results were due to bad care or from factors outside the nursing home’s control.
So what should you do if you learn that your clients have encountered these circumstances? First, your radar should go off as to potential actionable neglect. Second, if you believe it appropriate given the individual clients, advise them that there is a body of literature that suggests the above-listed injuries raise serious questions about the adequacy of care. Third, if the client is so inclined, direct them to a lawyer whose practice is focused upon nursing home abuse and neglect.
Families and lawyers should be aware that recently, the civil justice system has been radically altered in Texas in a manner that is unfavorable to victims of nursing home neglect. In 2003, the Texas Legislature passed sweeping tort reform measures known as House Bill 4. Importantly, the new measures include:

• A provision that exemplary damages can be awarded only upon a unanimous verdict;20
• A prohibition on the admission of DADS investigation survey reports into evidence21; and
• A $250,000 cap on the recovery of non-economic damages against a nursing home, regardless of the severity of the conduct, resultant harm, or number of nursing home defendants.22

House Bill 4 was passed despite a 2002 Congressional report showing that 86 percent (987) of Texas’ 1,148 nursing homes violated federal health standards during recent state inspections.23 This report, based on an analysis of recent annual inspections, complaint investigations of Texas nursing homes, and staffing data maintained by HHS, also found that:

• Many of these 987 nursing homes were repeat offenders. On average, each had 9.8 violations of federal quality of care requirements;
• 39 percent (385) of these nursing homes had violations that caused actual harm to residents or placed residents at risk of death or serious injury;
• 94 percent (1,060) of nursing homes did not meet minimum staffing levels; and
• Comparatively, Texas nursing homes rank 43rd in the nation in hours of nursing care provided to residents each day.24

While House Bill 4 was intended to eliminate frivolous lawsuits, it has disproportionately impacted and endangered nursing home residents. Effectively, it has afforded the worst nursing home providers – those who commit the most horrific forms of abuse and neglect - the greatest protection.
Specifically, the cap on non-economic damages eliminated one of the few protections shielding elderly nursing home victims. Non-economic damages are awarded for pain, suffering, mental anguish, disfigurement and physical impairment and form the core of recoverable damages for a nursing home victim. While economic damages such as lost wages and future medical expenses often make up the bulk of a personal injury claim, practically speaking, they are not available to a victim of nursing home neglect or abuse, as the residents typically are frail elders whose economic damages are nonexistent.
Unfortunately, the cost of prosecuting and uncovering dangerous conduct and harm in a nursing home case often dwarfs the damages recoverable under current law. As a result, most lawyers will not accept a nursing home case, regardless of how egregious or severe the neglect or abuse. Consequently, the current one-size-fits-all civil justice system no longer has the “teeth” to deter ongoing nursing home neglect. Our elderly nursing home residents are the worse for it.

Jason Young is an associate with Marks, Balette & Giessel, P.C. He practices almost exclusively in old law and new law nursing home litigation. Young is a 2002 graduate of Baylor University School of Law.

David Marks is a partner with Marks, Balette & Giessel, P.C. Previously, he served as Chief of Litigation and Special Prosecutor in the Office of the Attorney General, State of Texas: State of Texas v. Autumn Hills Convalescent Center, Inc., et. al. and as a prosecuting attorney for Galveston County, Texas. A 1977 graduate of South Texas College, Marks has served as the chair of the nursing home litigation group, served as an expert witness on nursing home related issues before the United States Senate and the Texas House of Representatives, and authored numerous articles on nursing home neglect and litigation.

Endnotes
1. The National Citizens’ Coalition for Nursing Home Reform (NCCNHR) can be contacted at nccnhr@nccnhr.org, www.nursinghomeaction.org or by calling (202) 332-2275. 2. Texas Advocates for Nursing Home Residents (TANHR) can be contacted at www.tanhr.org or by calling (888) 826-4748. 3. The Houston chapter of the Alzheimer’s Association can be contacted at www.alztex.org. 4. Advocates for Nursing Home Reform can be contacted by calling Marie Wisdom at (512) 266-1961 or mbwisdom@swbell.net. 5. Sid Gerber and Associates can be contacted at (713) 778-1966. 6. HHS, Report to Congress: Appropriateness of Minimum Nurse Staffing Ratios in Nursing Homes, Phase II Final Report (December 2001). 7. The Texas Health and Safety Code and the Texas Administrative Code are available at www.state.tx.us. The specific statutes and regulations pertaining to nursing homes and nursing home residents can also be found at www.marksfirm.com. 8. 40 Tex. Admin. Code §§ 19.403(k), 19.801, 19.802, 19.1001, 19.1002, 19.1010, 19.1101, 19.1107 – 1110, 19.1905, 19.1901, 19.1903, 19.19.04, 19.1910 – 19.1912, 19.1917 (2006). 9. 40 Tex. Admin. Code §§ 19.701 and 19.901 (2006). 10. Long Term Regulatory Guide to Obra Regulations and Interpretive Guidelines, Version 1.1, Heaton Publications, Inc., October 2000. 11. The DADS Long Term Regulatory Guide is available at http://heaton.org or (800) 221-2469. 12. The Texas Human Resources Code is available at www.state.tx.us. The specific statutes and regulations pertaining to resident rights can also be found at www.marksfirm.com. 13. Tex. Hum. Res. Code Ann. § 102.003 (Vernon 2001 and Supp. 2005). Resident rights are also found at 40 Tex. Admin. Code § 19.401(b) (2006). 14. 40 Tex. Admin. Code § 19.101(81) (2006). 15. Nursing Home Conditions in Texas, Many Nursing Homes Fail to Meet Federal Standards for Adequate Care, U.S. House of Representatives, committee on Government Reform, Special Investigations Division, Minority Office, October 2002. 16. Sarah Greene Burger, Virginia Fraser, Sara Hunt, and Barbara Frank, Nursing Homes: Getting Good Care There (2nd ed., Impact Publishers, 2001). 17. 40 Tex. Admin. Code § 19.701(3) (2006). 18. A Houston area Ombudsmen can be located at www.ltcombudsman.com or by calling (202) 332-2275. 19. Improving the Quality of Care in Nursing Homes, Committee on Nursing Home Regulation, Institute of Medicine, National Academy Press, Washington, D.C., 1986. 20. Tex. Civ. Prac. & Rem. Code Ann. § 41.003(d) (Vernon 2005). Tex. Civ. Prac. & Rem. Code Ann. §41.008 caps punitive damages at $750,000 plus two times the amount of economic damages. 21. Tex. Hum. Res. Code Ann. § 32.060 (Vernon Supp. 2005). 22. Tex. Civ. Prac. & Rem. Code Ann. § 74.301 (Vernon 2005) 23. Nursing Home Conditions in Texas, Many Nursing Homes Fail to Meet Federal Standards for Adequate Care, U.S. House of Representatives, committee on Government Reform, Special Investigations Division, Minority Office, October 2002. 24. Id.

Text is punctuated without italics.

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