When You Can't Go Home Again Using Consumer Law To Protect Illinois Nursing Home Abuse To Residents

consumerlaw.org, Sep 13, 2005

Finding affordable, quality long-term care is one of the most critical problems faced by seniors, their families, and caretakers. Because the search for quality care usually occurs during times of crisis, it is extremely difficult for seniors and their caretakers to assert their rights. The balance of power favors the nursing facility. All too often, facilities take advantage of the situation, preying on vulnerable residents. Consumer law remedies are critical in challenging instances of neglect and other blatant violations of federal and state laws.

TYPES OF LONG-TERM CARE

Nearly every one of us at some point in our lives either will enter a nursing facility or assist as someone we know faces the prospect of long-term care in a nursing facility. It is estimated that as many as half of all women over 65 in the United States and a third of all men will spend some of their remaining time in a nursing facility.1

In general, nursing facilities provide room, board, assistance, and nursing services. Other types of long-term care such as assisted living facilities provide room, board, and assistance, but only limited health-related services if any.2 A continuing care retirement community generally includes a nursing facility and a residential care facility, and also may include apartments for independent individuals.

COMMON PROBLEMS WITH NURSING FACILITIES

Neglect and other abuses in nursing facilities is a national tragedy. A 1999 General Accounting Office (GAO) study found that between January 1997 and July 1998, there were over 1,500 substantiated cases of abuse and neglect in nursing homes.3 The study found that 25% of the nation's over 17,000 nursing facilities "...had deficiencies that caused actual harm to residents or placed residents at risk of death or serious jeopardy." According to U.S. Attorney General Janet Reno, the price of inadequate nursing facility care is paid "in human suffering and lost public resources."Unfortunately the primary federal law designed to curb nursing facility abuses, the Nursing Home Reform Law (NHRL), is rarely enforced and nursing facilities routinely violate its various requirements For example, in the General Accounting Office study discussed above, there was no government enforcement action in more than 90% of the cases cited. There is a similar lack of enforcement of many state nursing facility laws.

Common nursing home abuses and violations include:

Requiring third party guarantees as a condition of admission.
Limiting visiting hours for immediate family or other relatives.
Evicting residents because they are considered to be difficult.
Requiring residents to move while Medicaid applications are pending.
TOOLS TO CHALLENGE ABUSIVE NURSING FACILITY PRACTICES

There are several ways to challenge problems with nursing facilities including individual advocacy, complaints to the ombuds office, and litigation. Individual advocacy by residents and other interested persons, while an important first step, is often limited by the inherent inequality of the nursing home/resident relationship. Under these circumstances, residents, friends and family members are often reluctant to complain.

In addition to individual advocacy, every state has a long-term care ombuds program for identifying, investigating and resolving complaints made by or on behalf of residents of long-term care facilities, including nursing, board and care and assisted living facilities. Shortages of staff and resources, however, may prevent the ombuds program from vigorously pursing all claims.

Litigation can be one of the most powerful and effective ways to improve the living conditions of nursing facility residents.

SUMMARY OF CONSUMER LAW REMEDIES

Unfair and Deceptive Acts and Practices (UDAP) Statutes

Every state and the District of Columbia has at least one broad consumer protection statute that falls into the general category of an unfair and deceptive acts and practices (UDAP) statute.13 There are many advantages to using UDAP statutes to challenge abusive, deceptive, and unfair marketplace transactions.

UDAP statutes are very broad, allowing consumers to challenge a wide range of abusive behavior that may or may not violate another state or federal civil or criminal statute. Second, almost every state UDAP statute authorizes private lawsuits. Consumers can seek many different types of relief in UDAP claims, including actual, treble, minimum and/or punitive damages, injunctive relief to stop abusive practices, class actions, and in most states, attorney's fees as well.14 The type of relief available varies by state.

Some states list the particular types of violations that can be brought under the state UDAP statute, although claims are generally not limited to the violations listed in the statute. Other states have UDAP statutes or regulations that specifically prohibit certain practices. Practices that are specifically listed in the statute or regulation should be per se UDAP violations. This means that they are automatic violations and it is not necessary for the consumer to have proof that the practice is unfair or deceptive. In many states, a violation of another state or federal statute such as the federal nursing home reform law discussed above, is a per se UDAP violation.15

Although many of a nursing facility's harmful practices will violate state or federal nursing facility laws, in some cases, a particular abusive practice will not be a specific violation. This is by no means the end of the story. It is still very likely that there is a UDAP violation, but the consumer will have to prove that a particular practice is deceptive or unfair.16 This is a very broad standard and unlike common law fraud, consumers do not have to show that the seller or provider knew the practice to be deceptive or intended it to be deceptive.

Examples of UDAP Claims in Nursing Facility Cases:

In Illinois, a UDAP cause of action against a nursing facility chain and a pharmacy service withstood a motion to dismiss, based on allegations that the defendants routinely misrepresented that their medication prices were lower than the prices offered by other suppliers.

Also in Illinois, class certification was granted in a UDAP claim against a nursing facility for assessment of excessive charges for medication.18 A California UDAP case alleged that the facility had employed inadequate numbers of staff members, falsified records, used rotting food, and failed to keep residents clean.19
In Pennsylvania, a resident alleged that the facility had a practice of discharging residents who applied for Medicaid.20
Another source of UDAP claims is the failure of the nursing facility to hire competent staff and/or to provide proper training. Even though nurse's aides do most of the bathing, dressing, turning, and feeding of patients, they generally receive very little training and are paid very low salaries. In a 2000 Health Care Financing Administration report to Congress, it was found that 54% of nursing homes subject residents to harm due to inadequate staffing.21

Despite important differences between nursing facilities and assisted living facilities, many of the consumer remedies that apply to nursing facilities can also be used to challenge abusive and deceptive practices of assisted living facilities.22

GETTING STARTED WITH A UDAP CASE

Before bringing a UDAP claim against a nursing facility, advocates must first determine whether the particular state statutes cover nursing facilities. In most states, a strong argument can be made to apply UDAP statutes to nursing and assisted living facilities. For an analysis of this issue and a list of relevant state statutes, see the National Consumer Law Center's publication, "When You Can't Go Home Again: Using Consumer Law to Protect Nursing Facility Residents" (2000). Call National Consumer Law Center at 617-542-8010 to order a copy