Expert witness in elder abuse and nursing home negligence

Insights from Mary’s work


I once heard a sermon by a beloved minister whose key message sums up my view about elder care:

The main thing is to keep the main thing the main thing.

Nursing homes can lose sight of what the “main thing” is. Yes, there are census concerns, and other day-to-day responsibilities, but at the end of the day the main thing is the resident’s care.

Comprehensive Person-Centered Care Plans

In my opinion, after working for 40 years in the business, the most important way to diminish the chance of elder abuse (and to give the residents the best and most appropriate care) is to have comprehensive person-centered care plans in place. Along with care plans are care conferences, held with the family and the resident to assure that items on the care plans are being implemented. The care planning team is made up of nurses, caregivers, dietitians, therapists, activity professionals, social workers and family, as well as the resident. Occasionally an ombudsman or conservator will attend.

The care planning process itself consists of developing a baseline care plan to address the total person. It’s essentially a recipe. Just like baking a cake requires all the ingredients to be delicious, having the full team present for care planning is essential to a giving the resident what they deserve. This plan must be person-centered and followed. Any facility has 48 hours to complete a resident’s care plan post-admission.

Once the plan is in place, the resident and their representative get a copy of a summary of the plan. This baseline care plan includes initial and measurable goals, and a timeframe to meet the goals outlined, a summary of medications and dietary instructions, service, and treatment to be given to the residents.

All care plans must go along with OBRA regulations which state that the services to be furnished are to attain (and maintain) resident’s highest practicable physical, social and psycho-social well-being. Periodic interdisciplinary team meetings ensure that the plan is kept relevant.

All of this can go very wrong when the Charge Nurse or caregivers neglect to review the plan. For example, if the care plan says that the resident needs two-person assist for toileting and is not to be left alone, and if this information is overlooked or ignored, the resident can fall, resulting in a serious (potentially litigable) injury.

Unless members of the care team talk to each other, and unless there is complete accountability on the nurses’ part, it is likely that the care plan will be, in effect, useless and the resident will be subject to care that is inappropriate and unsafe.

Inappropriate Placement of Residents

The elderly are being inappropriately placed and retained. The pressure to maintain a corporate-mandated census results in serious missteps.

I have worked in multiple states and this has come up over and over again in residential care facilities. These are social model facilities where residents are there primarily for socialization, not medical treatment, as in Skilled Nursing. Not only are many elderly being inappropriately placed in facilities that cannot care for them, these same facilities keep residents far too long when serious events happen, such as multiple falls with fractures, bed sores and advancing dementia.

A board and care facility has limited regulations. It’s all too easy to get into the business. And it’s no surprise that many legal cases arise.

Medicare’s 5-star Rating for Nursing Homes

The 5-star rating is relatively new in long-term care. It gives the appearance of a seal of approval, looking at several categories: health inspections (government-reported), staffing levels (self-reported) and quality indicators (also self-reported).

Annual health inspections are performed by the government, but the other two categories depend on the honesty of each facility. Therein the rub. Some companies will go to great lengths to create the appearance of top service. If there are so many 5-star facilities, why are there so many elder abuse lawsuits?

Are things really any better?

1975 is the year that I began my journey to become a Nursing Home Administrator. It is also the year that the Special Committee on Aging/United States Senate report on “Nursing Home Care In The United States: Failure in Public Policy,” came out. This report “declares that today’s entire population of the elderly, and their offspring, suffer severe emotional damage because of dread and despair associated with nursing home care in the United States today. Efforts have been made to deal with the most severe of those problems. Laws have been passed; national commitments have been made; declarations of high purpose have been uttered at national conferences and by representatives of the nursing home industry.”

Conclusion? “But for all of that, long-term care for older Americans stands today as the most troubled, and troublesome, component of our entire health care system.”

1987 enter OBRA (Omnibus Budget Reconciliation Act) This was considered landmark legislation signed into law by President Ronald Reagan. The basics of this act is “long term care facilities wanting Medicare or Medicaid funding are to provide services so that each resident can “attain and maintain her/his highest practicable physical, mental, and psycho-social well being.” The Federal Nursing Home Reform Act or OBRA creates a set of national minimum set of standards of care and rights for people living in certified nursing facilities.

2019 OBRA continues to this day to add new legislation to improve the quality of care for all residents. As an Administrator who has worked in four states and for multiple companies both large chains and for “mom and pop” companies my answer is “it depends on the companies commitment to providing good care.” Here is what Administrators need from the company that they work for:

  • Competitive wages for staff. Many nurses and caregivers are working two jobs in order to survive due to the low wages paid for their work. This causes fatigue, sleeping on the job, not tending to resident needs, not answering call lights, heavily padding resident beds at night so that caregivers do not have to change the resident which usually involves changing the whole bed, and answering cell phones while giving care.

  • More thorough on-boarding. With the nursing staffing crisis it is all to easy just to hire and get people in right away, without thorough in-servicing prior to beginning work.

  • Less emphasis on marketing to get the “best Medicare rehab patients.” It used to be that companies would encourage facility Marketing Directors to bring gifts to Hospital Discharge Planners. These gifts started out being a company logo mug with chocolates then went to large gift baskets, then event tickets, and I have even heard of week-end trips to Discharge Planners in exchange for the “best”Medicare referrals. I was at a seminar where the Stark Law was the subject. The Stark Law is basically an anti-kick back law, which prohibits facilities giving gifts as a way to get the Medicare patients. As an aside, when I worked in Connecticut, there was a “Waiting List Law,” which in my opinion all states should have. The facilities had to keep a log of all referrals showing the date and time of the referral. The facility had to then take new residents in order of their position on the log.

  • Supervisory training for Charge Nurses. We hire Charge Nurses whose job it is to take charge of the unit that they are assigned to…but they don’t! This means communicating to the caregivers about their job responsibilities and then holding them accountable. It would be easy for companies to provide supervisory training for Charge Nurses…but they don’t. With nobody taking responsibility for this supervision, caregivers take shortcuts. The results are often bad outcomes for the residents, such as decubitus, not being turned/repositioned or changed, not being fed, and not having socialization. Zero Tolerance For Abuse and Neglect written by M. Hawryluk in Provider Magazine in September,1998, quoted a CNA who testified at the Senate Aging Committee Hearing. The article spoke to patient-to-staff ratios and the CNA testified that “If you can’t do the work, you just chart that you do.” I guess that they figure that nobody will notice, but what about the resident? Where was the Charge Nurse?

  • Companies need to actually pay their bills, so that the facility can have adequate supplies of linens, food, cleaning supplies, medical supplies, etc. This seems relatively simple, but I have seen first-hand what happens when a company does not pay their bills. In some cases, employees have even used their own money to purchase supplies. In one company that I worked for, my first two pay checks bounced! There is no excuse for this.

  • Less computerization and on-line meetings and trainings. This is the area where companies are spending a lot of money that could be used to benefit the residents with better equipment, nicer environments and better food. Recently skilled nursing facilities were required to have computerized charting, with no real training offered for staff who are not computer literate.

Bottom line…we cannot continue to look at residents as a commodity or a head in the bed, but rather human beings who need and deserve the best care.