The Basics of Reporting Nursing Home Abuse

The Different Types of Nursing Home Abuse

Among the many concerns of an elder seeking the services of a nursing home or assisting a loved one in such a search are the types of mistreatment that can take place in such facilities. Nursing home abuse may take a number of different forms, and not every instance of mistreatment is so overt nor easy to spot. The following are the most common types of abuse that may occur in such a setting, which all must be considered when looking for a facility. Some of the more common forms of abuse which can occur in a nursing home include: Physical – Physical abuse is the intentional use of physical force, such as hitting, kicking or pushing. This form of abuse can be detected if there is bruising, broken bones and other unexplained injuries. Emotional – Emotional and verbal abuse is often overlooked , but can inflict mental trauma if left unaddressed. If you notice signs of depression, disorientation and lack of trust in a loved one, this may indicate emotional abuse. Sexual – Sexual abuse can occur by anyone on a resident’s care team, or even another resident. Signs that may indicate sexual abuse include bleeding, bruising or unexplained sexually transmitted diseases and infections. Neglect – While not abuse in the traditional sense, neglect may occur when a caregiver fails to perform their necessary duties. This can be as simple as forgetting a resident’s favorite food or as serious as failure to provide adequate medical care for a resident’s needs. Though difficult to spot, abuse by financial or healthcare providers must be taken seriously. If you begin to notice suspicious signs of neglect, contact the authorities immediately.

Your Legal Responsibilities for Reporting Nursing Home Abuse

In most jurisdictions, there are mandatory laws and regulations for reporting suspected nursing home abuse. These laws generally require disclosure to government authorities, healthcare institutions, or others permitted to investigate and remedy the situation under the law. However, the laws do not typically require disclosure to the general public.
According to the National Center on Elder Abuse, there are currently 42 states, plus the District of Columbia, that have passed laws requiring mandatory reporting of elder abuse. The ALI, the American Bar Association, and the Special Committee of Professional Abuse of the House of Delegates also advocate the need for mandatory reporting of abuse.
Each state has different laws regarding who is legally obligated to report suspected nursing home abuse. In 22 states, all citizens have a legal obligation to report suspected abuse and neglect. In 19 states, only certain professionals are obligated to report suspected abuse or neglect. These professionals can include nurses, psychologists, social workers, law enforcement, and others.
There have been recent proposals to make professionals who fail to report suspected abuse subject to civil liability. However, mandatory reporting provisions have been criticized as impractical because sometimes even trained professionals fail to detect elder abuse.
However, in the case of a medical professional, they may be considered medically negligent for failing to report nursing home abuse. Administrative regulations of the Medicare and Medicaid programs also require hospitals to educate and train employees about current laws and procedures for reporting suspected abuse, neglect, or misappropriation of property.
Most jurisdictions, however, provide a legal remedy for failing to report suspected nursing home abuse. For example, in Pennsylvania, a person that willfully failed to report suspected abuse, or that willfully prevented another individual from reporting suspected abuse, is guilty of a first-degree misdemeanor.
A few states, however, do not have mandatory reporting laws for nursing home abuse, or have adopted laws allowing for confidential reporting that does not allow the reporter’s identity to be revealed. In these states, some exceptions may exist for emergency responders, financial institutions, as well as bank regulatory and federal housing officials.
A person who reports suspected nursing home abuse in good faith, or who assists in an investigation of the abuse, is also protected by law from that person being sued for damages due to nursing home abuse.
In federal law, the Employee Retirement Income Security Act ("ERISA") protects individuals engaged with a pension plan from being fired or discriminated against for reporting the conduct of any person that is believed to be a breach of the duties of the plan to the plan’s administrators, fiduciaries, or any other supervisory employees.

How to Report Nursing Home Abuse

When it comes to reporting nursing home abuse and neglect, there is no one ideal step-by-step process. This is because the state laws vary. However, there are some steps all supposed nursing homes must follow in California.

Step 1. Contact the Ombudsman

If you are the relative of a resident and you see or hear of an incident of abuse or neglect, the first step is to contact the Long-Term Care Ombudsman. The skilled elder law attorneys at the Marc Whitehead & Associates law firm contact the Ombudsman all the time to report abused or neglected nursing home patients. The Ombudsman will then determine if an investigation needs to be initiated, which is where the next step comes in:

Step 2. Call 911

If abuse or neglect is severe, your next contact is with the police. If you suspect the nursing home employee of abusing the resident with physical means, call 911. You can also go online to the Long-Term Care Ombudsman website for resources; they have a tab labeled "How to File a Complaint". Other options are to visit or call your local Area Agency on Aging Public Agency or the California Department of Aging.
If you are the family member of a patient who has been abused or neglected, you can contact the police department. The police department will likely send a police investigation unit to the nursing home. The police unit will evaluate and investigate the site and gather the necessary information in the case of elder abuse.

Step 3. Contact the Department of Public Health (DPH).

If your relative is being abused or neglected in a skilled nursing facility or long-term care unit, the Department of Public Health (DPH) is the agency to report individual incidents of suspected abuse, neglect or misappropriation of funds or property. The DPH will conduct surprise visits based on research done by the Long-Term Care Ombudsman and the police investigations discussed above.
If you see a resident of the nursing home becoming more fearful, losing weight, or otherwise abnormally ill, you could be looking at physical abuse or neglect. The nursing home employee may be purposely not providing care; therefore, it is important to call the DPH. The DPH will visit the site and investigate the incident of abuse or neglect by a nursing home employee. The DPH will take whatever actions are necessary to resolve the situation.
An important note: If the DPH conducts an investigation, it usually happens sometime after the nursing home has closed down. The reason for this is that they haven’t won their case, so they want to avoid liability.

Safeguarding Whistleblowers and Complainants

The law also protects people who complain of nursing home abuse. Under federal laws, facilities cannot retaliate against a whistleblower for reporting suspected abuse. Therefore, it is important that you report the abuse legally under the law and notify the Illinois Department of Public Health and the police department. If a family member or employee of the facility is fired, demoted, transferred, or otherwise punished merely because a complaint is filed with the appropriate agency, the victim of the retaliation is entitled to a remedy.
The nurse practice acts are state laws that establish education and licensure requirements for nurses. This means that complaints against nurses and certified nurse assistants (CNAs) who abuse patients must be filed with the relevant state body for their licenses. In Illinois, this is the Illinois Department of Financial and Professional Regulation. Sometimes, licensed professionals are bound by other state laws concerning their misconduct. For example, Illinois law requires medical professionals to submit an adverse incident report to the Healthcare and Family Services written within seven days after an alleged event to be filed. Other states have similar regulations. Facilities are required to keep confidential all complaints of abuse and information related to those complaints. In addition, complaints must be kept confidential if they are reported to Protective Services, the Department of Public Health, or the police.

The Nuances of State-Specific Reporting

Not all states have the same reporting requirements, so it is important that you understand your own state’s specific laws before reporting any suspected cases of nursing home abuse.
Most states require reporting by the general public if they suspect abuse at a nursing home, whether they are professionals or not. Other states only require that professionals report suspected abuse. Still others require reports by anyone who suspects abuse—unless they are health care professionals.
Don’t be confused by the fact that many protections or exceptions for reporting abuse are often found in the law itself, but may also have an exception for reporters’ names or licenses.
Below is a state-by-state analysis of reporting abuse in nursing homes as compiled by Nursing Home Abuse Justice’s international resources:
Alabama: Any person may report suspected abuse
Alaska: Mandatory reporting required for non medical school employees, with penalties for non-reporting
Arizona: Any person may report suspected abuse
Arkansas: Mandatory reporting required for non medical school employees, with penalties for non-reporting
California: Mandatory reporting required for non medical school employees, with penalties for non-reporting
Colorado: Mandatory reporting required of all non medical school employees, with penalties for non-reporting
Connecticut: Mandatory reporting required for both non medical school employees and employees of medical schools, with penalties for non-reporting
Delaware, Florida and Washington: Required reporting of any person suspected of abuse
Georgia: Mandatory reporting required, with penalties for non-reporting
Hawaii: Mandatory reporting required for licensed or registered health care professionals, and DEA-registered persons
Idaho: Mandatory reporting required for every person with the intent to facilitate medical care, with penalties for non-reporting
Illinois: Mandatory reporting required for licensed or certified health care professionals, with penalties for non-reporting
Indiana: Mandatory reporting required for health care professionals, with penalties for non-reporting
Iowa: Mandatory reporting required for many categories of individuals, including licensed or registered health care professionals, with penalties for non-reporting
Kansas: Any person may report suspected abuse
Kentucky: Mandatory reporting required for health care professionals, with penalties for non-reporting
Louisiana: Mandatory reporting required for all health care professionals and anyone else with intent to facilitate medical care, with penalties for non-reporting
Maine: Mandatory reporting required for health care professionals, with penalties for non-reporting
Maryland: Any person may report suspected abuse
Massachusetts: Mandatory reporting required for all health care professionals, with penalties for non-reporting
Michigan: Mandatory reporting required for non medical school employees, with penalties for non-reporting
Minnesota: Mandatory reporting required for non medical school employees , with penalties for non-reporting
Mississippi: Mandatory reporting required for licensed health care professionals, with penalties for non reporting
Missouri: Mandatory reporting required for all health care professionals, with penalties for non-reporting
Montana: Mandatory reporting required for anyone employed by a health facility, including non-medical school employees, with penalties for non reporting
Nebraska: Mandatory reporting required of licensed health care professionals, with penalties for non reporting
Nevada: Any person may report suspected abuse
New Hampshire: Mandatory reporting required for every person with the intent to facilitate medical care, with penalties for non-reporting
New Jersey: Mandatory reporting required for all health care professionals, with penalties for non-reporting
New York: Mandatory reporting required for all health care professionals, with penalties for non-reporting
North Carolina: Mandatory reporting required for all health care professionals, with penalties for non-reporting
North Dakota: Mandatory reporting required for licensed health care professionals, with penalties for non-reportting
Ohio: Mandatory reporting required for licensed health care professionals, with penalties for non reportting
Oklahoma: Mandatory reporting required for all health care professionals and employees of medical schools, with penalties for non-reporting
Oregon: Mandatory reporting required for all health care professionals and employees of medical schools, with no penalties for non reporting
Pennsylvania: Mandatory reporting required for licensed health care professionals, with no penalties for non reporting
Rhode Island: Mandatory reporting required for licensed health care professionals, with no penalties for non reporting
South Carolina: Mandatory reporting required for anyone in a health care facility with duties to report, with no penalties for non reporting
South Dakota: Mandatory reporting required for non medical school employees, with no penalties for non reporting
Tennessee: Mandatory reporting required for all health care professionals, with penalties for non-reporting
Texas: Mandatory reporting required for every person with the intent to facilitate medical care, with penalties for non-reporting
Utah: Mandatory reporting required for all health care professionals, with penalties for non-reporting
Vermont: Mandatory reporting required for licensed health care professionals, with no penalties for non reporting
Virginia: Mandatory reporting required for all health care professionals, with penalties for non reporting
Washington: Mandatory reporting required for licensed health care professionals, with no penalties for non reporting
West Virginia: Mandatory reporting required for all health care professionals, with penalties for non reporting
Wisconsin: Mandatory reporting required for licensed health care professionals, with penalties for non reporting
Wyoming: Mandatory reporting required for every person with the intent to facilitate medical care, with no penalties for non reporting

The Role of the Appropriate Regulatory Agency

When nursing home residents are abused or neglected, the issue is often reported to authorities to investigate the incident. The regulatory agencies that oversee licensing, certification and standards of long-term care facilities coordinate oversight activities within their health care systems, and often investigate reports of abuse. The Department of Health and Human Services’ Office of Inspector General works with the Centers for Medicare and Medicaid Services to investigate quality of care in long-term care facilities. Funding for the Office of Inspector General comes from Medicare and Medicaid. The Office of the Inspector General investigates and determines whether individuals and facilities are complying with federal and state laws. When an individual is found to have abused a resident, federal law prohibits that person from operating a facility, and he or she should be reported to a licensing board for a determination of any licensure action.

Failure to Report Consequences

Healthcare providers who willfully conceal, or fail to report known or suspected incidents of abuse within nursing homes are subject to many different forms of discipline. For example, the Administrative Law Judge hearing the case may impose the following disciplinary measures: These civil penalties are in addition to the criminal and professional repercussions that may arise out of non-compliance with the reporting requirements. In addition to penalties and sanctions imposed against the reporting individual, a facility may be cited by the Department of Aging and Disability Services for violations, which may result in fines of $1,000 to $25,000 per violation . The criminal penalties can include fines up to a maximum of two years in prison for violating section 161.134 of the Texas Health and Safety Code, or up to a maximum of six months and/or a fine of between $250 and $1,000 for failing to make a report. Finally, the regulatory authorities may suspend or revoke the perpetrator’s nursing home or nursing home administrator license in addition to suspending the facility’s license where action is necessary to protect the health and safety of the residents of a facility.