When your loved one is put into the care of a nursing home, it is only natural to want the best for them during their time at the facility; however, there exists the risk of financial, physical, emotional, sexual, neglectful, and resident-on-resident abuse. Luckily, all these forms of abuse fall under the legal grounds for discharge, as a nursing home that engages in any of these abuses is not only failing to meet the personal and medical needs of its residents but also compromising their quality of life.
In New York, nursing homes are held liable for any harm a resident experiences while under their care. If abuse or neglect is occurring, you have the right to request a discharge, and the facility cannot reject this request. But while the nursing homes may comply, it is important to keep in mind the ways that your Medicaid may be affected as well. While your Medicaid program cannot directly reject a physical discharge from a facility, the plan may incur some changes in policy and payment.
If you suspect that your loved one is being abused in their nursing home, expert legal guidance is necessary to safely remove them from the facility and retain their Medicaid services.
Understanding Nursing Home Resident Rights in NY:
In New York, nursing home residents are entitled to a bill of rights. Your family member, as an admitted nursing home resident, has the right to:
- Dignity, respect, and a comfortable living environment
- Quality of care and treatment without discrimination
- Freedom of choice to make their own independent decisions
- Safety of property and money
- Protection during admission, transfer, and discharge
- Privacy in communications
- Participate in activities of their choice
- Easily submit complaints with timely responses
- Appeal any discharge or transfer decisions
- Exercise all of their rights without fear of retaliation
If your family member expresses that any of these rights have been infringed upon, it could be a sign that abuse is occurring within the nursing home.
Types of Abuse Among Nursing Facilities:
Being educated about how your family member’s rights are disrespected is crucial to a successful discharge. If you suspect that an elderly relative is a victim of abuse in their nursing home, it is of utmost importance to be aware of the ways it can manifest:
Financial Abuse
Financial abuse within a nursing home is the exploitation of a resident’s money, assets, and property. There may be several signs that your loved one is experiencing financial abuse. Unauthorized transactions and sudden monetary changes to a resident’s bank account are one of the first warning signs. Your loved one may be reluctant to discuss financial issues that were once a usual topic, followed by money transfers to unknown persons, and possible changes in financial documents and/or their will. A forged signature on checks and other documents is also indicative of financial abuse—if a signature is forged, it may look like the nursing home resident is issuing checks very frequently within the facility. One of the most prevalent warning signs of financial abuse and forgery is the worsening of a resident’s quality of life and well-being, even if their resources allow for proper care at the facility.
Physical Abuse
One of the most dangerous kinds of abuse that happens to nursing home residents is physical harm. Physical abuse within the nursing facility consists of unnecessary force, such as hitting, pushing, and improper handling, including wrongful use of restraints. If your elderly relative develops unexplained bruises, scratches, fractures, wounds, or pain, they may be signs that your loved one is suffering from physical abuse in the nursing home. Signs of physical abuse are especially significant when a resident shows heightened fear around certain staff. It is crucial to take action quickly, as certain small injuries can point to a much larger problem.
Emotional/Mental Abuse
Emotional abuse can be devastating for a senior loved one in a long-term nursing home. Emotional abuse is characterized by verbal attacks, isolation, humiliation, intimidation, and bullying. Verbal attacks consist of threats, insults, and degrading comments made at a resident. A resident is isolated when they are purposefully separated from others, stopped from joining social activities, and not allowed to speak with other residents. Intimidation can be used to psychologically manipulate a resident, creating fear to influence or control the resident’s actions. If your family member begins to experience sudden changes in demeanor, such as an increase in agitation, withdrawal from their community, and unexpected mood swings, they may be experiencing emotional abuse.
Sexual Abuse
Sexual abuse within a nursing home is incredibly dangerous and often concerns cognitively vulnerable individuals, such as Alzheimer's, or those in vegetative states. Residents in nursing homes cannot consent to any type of sexual relationship with staff or volunteers in the center. Sexual relationships between residents and staff are, by nature, coercive and exploitative. This includes groping, forcing a resident into sexual acts, or exposing a resident to sexually explicit material. Residents who are victims of sexual abuse experience injuries to the lower body, including bleeding and bruising, and may contract sexually transmitted infections. Sexual abuse also results in behavioral and emotional changes, such as discomfort around certain staff members, mental distress, avoiding touch, and anxiety attacks.
Neglect
Neglect is one of the most severe forms of abuse in nursing facilities. It is often a systemic issue within the facility and may affect several residents at the home. This means that your family member may be experiencing a pattern of abuse over a long period of time. Signs of neglect within a nursing home include: bedsores, malnutrition, poor hygiene, poor medication management, and lack of medical assistance. This can lead to a very sudden and severe decline in a resident's health. If a family member is a resident who is a patient and needs daily assistance, they often show signs of decline much sooner than others at the facility. Be aware of any drastic and sudden decline and/or development of severe illnesses, as this can quickly become life-threatening.
Resident-On-Resident Abuse
Lastly, financial, physical, emotional, and sexual abuse can all be perpetrated between residents within the nursing home. Due to the vulnerability and impairment of the elderly residents, it is the facility’s responsibility to foster an environment that fulfills each resident’s needs and takes care to avoid conflict between long-term nursing home residents. If a resident has a visible cognitive or physical impairment, they can become an easy target. Residents who display such impairments have difficulty defending themselves, which can cause confusion and emotional and mental distress. Another way resident-on-resident abuse happens is when certain residents who are diagnosed with cognitive diseases and mental illnesses, such as Alzheimer’s and Dementia, develop increased aggression. This leads to a higher frequency of emotional and physical abuse among residents and can even result in physical injury. The root causes of resident-on-resident abuse within nursing homes are improper supervision, understaffing, and hiring underqualified staff.
The Process of A Successful Discharge:
- Communicate- Abuse within nursing facilities is very serious and often very specific to the facility environment. First, be sure to communicate with your loved one about specific events and the days or times in which they happened. Ask them how they felt about what was going on, and if they had already spoken to the staff about what they were experiencing. Inquire whether the facility made any effort to change policy or staff to ensure their comfort.
- Evidence and Documentation- Gathering evidence is the top priority to get properly and legally discharged from a nursing home. Time-stamped photos of any evidence and videos of any injuries or other signs of abuse, with details specific to the resident, are crucial to building an individual case. Medical reports, write-ups, and injury documentation from the resident’s current medical care provider are a requirement to submit as evidence, as abuse is also considered legal grounds for discharge. If possible, acquiring surveillance-camera footage from the facility would be helpful to back up the legitimacy of your case, as they may capture the abuse being perpetrated in real time. Lastly, eyewitness testimony from other facility staff and relatives can solidify your portfolio of evidence.
- Past Records- Another important way to back up your documentation and ensure the safe discharge of your loved one is to research the records from the New York State Department of Health. This agency documents all past infractions, abuse complaints, and violation reports that have been filed against the facility. Presenting these additional records along with your own documented evidence will strengthen your case.
- Written Notice- Lastly, the nursing facility must send a 30-day written discharge notice that is required to explain the reason for discharge, the resident’s current diagnoses, the contacts of the resident’s health care team, a discharge plan, and any future medical plans made for the resident after they leave. If you and your family member have not received any notices after filing for discharge, be sure to contact the nursing home and your New York Medicaid plan coordinator, as improper paperwork can lead to a false discharge rejection letter from Medicaid. Most importantly, New York nursing homes are bound by law to respect a discharge on the grounds of abuse. Thus, it is crucial to be as thorough and prepared as possible when gathering evidence for your beloved family member’s discharge.
What to Look Out For After Discharging A Loved One
Now that you were able to successfully discharge your loved one from a nursing facility, let's look at some possible concerns regarding Medicaid coverage post-discharge.
- Rejection- If you and your family member filed for discharge due to abuse and received a notification of “rejection,” it is not an official denial—instead, it is likely an error that occurred during the discharge process. The most common mistakes are improper paperwork done by the facility or the facility informing Medicaid improperly of your reason for discharge. It is important to contact your former nursing facility and your Medicaid coordinator as soon as possible if you receive this error.
- Medicaid Recovery- One of the main issues that Medicaid recipients encounter is Medicaid estate recovery. Medicaid estate recovery is a process where Medicaid can reclaim payment from an estate after a loved one passes. Medicaid estate recovery may happen while your loved one is still alive; however, it is usually deferred if their spouse is not yet deceased. In New York, if your loved one has received over 36 months of long-term nursing home care during their time being covered by a Medicaid plan, Medicaid will not recover from your estate.
- Service Reduction- Another obstacle you may encounter after your family member has left the nursing home is a possible reduction of care services. Medicaid can reduce care services due to a technicality, since leaving a nursing home under a long-term care plan may signal to your loved one’s Medicaid program that they do not need as much care or medical assistance. Although it may seem you have to change your loved one’s care plan after receiving a notification of reduced services, that is not always the case. If your loved one is still in need of a long-term care plan outside of the nursing home, there are several ways to reinstate the proper services they need.
If you do encounter any one of these issues, it would be in your best interest to have an experienced legal representative to aid in the discharge process and help you navigate any of the difficulties after your loved one has been successfully discharged.
Ways to Ensure The Physical and Monetary Safety of Your Loved One
With the proper legal guidance, you may be able to keep your Medicaid plan. Here are some ways to alleviate possible Medicaid remediations to receive proper benefits for your family member once they are discharged:
- Filing Undue Hardship- Filing undue hardship is a process of appealing any changes that Medicaid imposes on your loved one’s healthcare plan after their discharge. By claiming undue hardship, your loved one is expressing that the changes in their Medicaid plan are causing unnecessary difficulty in daily life, followed by significant distress and monetary expenses. This may be a good option if you want to keep the Medicaid plan that was provided to your family member while they were still in the nursing home.
- Creating a Special Needs Trust- Setting up a special needs trust is pertinent for family members who have been recently discharged from nursing homes, especially if they have significant mental or physical disabilities. If your loved one requires special care after leaving their nursing home, a special needs trust is a good way to protect their benefits, assets, and ensure that they will be cared for regardless of changes in their care plan.
- NHTD Waiver Program- The Nursing Home Transition and Diversion Medicaid Waiver Program is for seniors who are eligible for nursing home care to choose the community and facility they want to live in. If your loved one ever decides to return to a long-term nursing home, the NHTD waiver program would be a great choice to preserve their autonomy and safety.
- PACE Long-Term Care Plan- Listed under the MLTC plans that Medicaid provides is the PACE (Programs of All-Inclusive Care for the Elderly) plan. It manages more of the member benefits that Medicaid can provide and is a good option if you are looking to continue long-term care outside of a nursing home, like a home attendant or nurse aide. Switching to PACE from MLTC can also help avoid a reduction of services since your loved one has already demonstrated their need for long-term care by staying in a nursing facility.
- Short-Term Care- If you and your family member believe that it is in your family’s best interest to reduce the amount of daily care and assistance that your loved one receives, it may be a good idea to consider switching to a short term plan, like Medicaid Certified Home Health Agency, which includes up to 29 days of in-home care over 12 months.
Knowing about all of these options can be very beneficial to the recovery of your family member after being discharged. Having the option to retain Medicaid services and healthcare plans may be life-saving for your loved one.
Conclusion
Understanding how abuse manifests in a nursing home is key to a successful discharge for your loved one. Identifying the type of abuse that your loved one has suffered from is crucial to gathering the proper witness statements and medical documents. With proper paperwork and documentation, nursing homes in New York can under no circumstances reject a discharge on the grounds of any of the abuse stated above. Furthermore, if Medicaid changes any services your loved one is receiving, there are several options available that allow you to keep their old Medicaid plan or create a new one. This way, Medicaid should also continue providing services to your family member, whether or not they are still in a nursing facility, or if their care plan has been amended.
Although the physical and emotional effects of nursing home abuse are a heavy weight to bear, learning about what a resident’s rights are and how to preserve their care services is an important step towards a successful discharge and rehabilitation. If you believe any kind of nursing home abuse is happening to your loved one, Medicaid and elder law attorney Inna Fershteyn will expertly guide you through this difficult time. For any questions or to inquire about a consultation, please call (718)-333-2394.
