When You Can't Go Home Again: Using Consumer Law to Protect Nursing Facility
Residents
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."4
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.5 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.6
Common nursing home abuses and violations include:
Requiring third party guarantees as a condition of admission.7
Limiting visiting hours for immediate family or other relatives.8
Evicting residents because they are considered to be "difficult."9
Requiring residents to move while Medicaid applications are pending.10
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.11
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.12
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
Introduction to 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.
Proving UDAP Claims
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.17
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.
OTHER POSSIBLE CLAIMS
In addition to UDAP statutes, there are many other possible causes of action
that should be considered, including:
Eric Carlson, "Eleven Falsehoods Told By Nursing Facilities (And How to
Counter Them)", The Elder Law Report, Vol. IX, No. 4 (Nov. 1997).
Eric Carlson, "Illegal Guarantees in Nursing Homes: A Nursing Facility
Cannot Force A Resident's Family Members and Friends to Become Financially Responsible
for Nursing Facility Expenses", 30 Clearinghouse Rev. 33 (May 1996).
Eric Carlson, Long-Term Care Advocacy (Matthew Bender 1999).
Stephanie Edelstein, "Living Longer: A Legal Response to Aging in America",
9 Stanford Law & Policy Rev. 373 (Spring 1998).
Diane Horvath and Patricia Nemore, "Nursing Home Abuses as Unfair Trade
Practices", 20 Clearinghouse Rev. 801 (Nov. 1986).
Deanne Loonin and Elizabeth Renuart, "Less Than Six Degrees of Separation:
Consumer Law Connections to Your Practice", Parts I and II, 31 Clearinghouse
Rev. 584 (March/April 1998), 32 Clearinghouse Rev. 3 (May/June 1998).
Joseph L. Matthews, Beat The Nursing Home Trap, (Nolo.com 1999). More information
available at www. Nolo.com.
National Citizens Coalition for Nursing Home Reform, Nursing Homes: Getting
Good Care There. More information available at www.nccnhr.org.
National Consumer Law Center, Unfair and Deceptive Acts and Practices (4th
ed. 1999 and Supp.).
National Consumer Law Center, When You Can't Go Home Again: Using Consumer
Law to Protect Nursing Facility Residents (2000). Available from the National
Consumer Law Center, 617-542-8010.
Dorothy Siemon, Stephanie Edelstein and Zita Dresner, "Consumer Advocacy
in Assisted Living", 30 Clearinghouse Rev. 579 (Oct. 1996).
American Bar Association Commission on Legal Problems of the Elderly
740 15th St., NW Washington, D.C. 20005-1022 (202) 662-8690 www.abanet.org/elderly
Alzheimer's Association National Headquarters 919 N. Michigan Ave.,
Suite 1000 Chicago, IL 60611-1676 (312) 335-5434 www.alz.org
Center for Health Care Rights 520 S. Lafayette Park Pl., Suite 214 Los
Angeles, CA 90057 (213) 383-4519 www.healthcarerights.org
Center for Medicare Advocacy P.O. Box 350 Willimantic, CT 06226 (860)
456-7790 and 1101 Vermont Ave., NW Suite 1001 Washington, D.C. 20005 (202) 216-0028
www.medicareadvocacy.org
Center for Social Gerontology 2307 Shelby Ave. Ann Arbor, MI 48103 (734)
665-1126 www.tcsg.org
National Academy of Elder Law Attorneys 1604 N. Country Club Rd. Tucson,
AZ 85716 (520) 881-4005 www.naela.org
National Association of Consumer Advocates 1717 Massachusetts Ave.,
NW, Ste. 704 Washington, D.C. 20036 (202) 332-2500 www.naca.net
National Citizens' Coalition for Nursing Home Reform 1424 16th St.,
NW, Suite 202 Washington, D.C. 20036-2211 (202) 332-2275 www.nccnhr.org
National Consumer Law Center 77 Summer Street, 10th Floor Boston, MA
02110 (617) 542-8010; Publications: (617) 542-9595 and 1629 K St., NW Suite
600 Washington, D.C. 20006 (202) 986-6060 www.consumerlaw.org
National Poverty Law Center 205 W. Monroe St. Chicago, IL 60606 (312)
263-3830 www.povertylaw.org
National Senior Citizens Law Center 1101 14th St., NW, Suite 400 Washington,
D.C. 20005 (202) 289-6976 www.nsclc.org
ABOUT NCLC
In 1992, NCLC received funding from the Administration on Aging (AoA) to launch
a National Legal Resource Initiative for Financially Distressed Older Americans,
intended to improve access to the quality of consumer representation for older
Americans.
Since 1969, NCLC has been providing legal advocates with technical and expert
assistance, training and publications that cover all major topics in consumer
law. NCLC has established itself as the nation's consumer law specialist, making
its legal expertise available to low income clients and their attorneys. These
services are available to advocates representing older Americans.
NCLC is available to consult with legal advocates for the elderly on a wide
range of consumer issues, providing leading and local case law, analyzing contract
documents for federal and state law compliance, defining factual and legal issues,
identifying experts and legal resources to strengthen cases and training attorneys
in consumer law.
NCLC works with lawyers and others on consumer issues affecting low and moderate
income clients. This brochure was supported, in part, by a grant from the Administration
on Aging, Department of Health and Human Services, Washington, D.C. 20201. Grantees
undertaking projects under government sponsorship are encouraged to express
freely their findings and conclusions. Points of view or opinions do not necessarily
represent official Administration on Aging policy.
1 "They
Didn't Live So Long For This", New York Times editorial, April 26, 1999.
2 This basic
definition is starting to change as more and more residential care facilities
are offering health-related services.
3 General
Accounting Office, Nursing Homes: Additional Steps Needed to Strengthen Enforcement
of Federal Quality Standards, GAO/HEHS-99-46 (March 1999). The report is also
available on the GAO's web site at www.gao.gov.
4 Remarks
of Attorney General Janet Reno, Conference of Nursing Home Fraud and Abuse Working
Groups, June 12, 2000. Also see the Department of Justice web site, www.usdoj.gov
(August 28, 2000) or the National Citizens Coalition for Nursing Home Reform,
www.nccnhr.org (August 28, 2000).
5 The Nursing
Home Reform Law (NHRL) is codified at 42 U.S.C. §1395i-3, 1396r. Section
1395i-3 applies to any facility that accepts Medicare reimbursement; §1396r
applies to any facility that accepts Medicaid reimbursement. The NHRL applies
to every resident of federally certified facilities, regardless of a resident's
payment source. For studies documenting violations of the NHRL, see Eric Carlson,
Bet Tzedek Legal Services, If Only I Had Known: Misrepresentations by Nursing
Homes Which Deprive Residents of Legal Protection (1995); Rebecca Benson, Check
Your Rights at the Door: Consumer Protection Violations in Massachusetts Nursing
Home Admission Agreements (1997).
6 See Eric
Carlson, Long-Term Care Advocacy (Matthew Bender 1999), hereafter "Long-Term
Care Advocacy." Section 2.101of this publication has a summary of each
state statute.
7 See 42
U.S.C. §1395i-3(c)(5)(A)(ii), 1396r(c)(5)(A)(ii); 42 C.F.R. §483.12(d)(2).
8 See 42
U.S.C. §1395i-3(c)(3)(B), 1396r(c)(3)(B); 42 C.F.R. §483.10(j)(1)(vii).
9 See 42
U.S.C. §§1395i-3(c)(2)(A), 1396r(c)(2)(A); 42 C.F.R. §483.12(a)(2).
10 For
more information on all of these violations, see The National Consumer Law Center's
publication, "When You Can't Go Home Again: Using Consumer Law To Protect
Nursing Facility Residents" (2000). Also see generally Eric Carlson, Eleven
Falsehoods Told By Nursing Facilities (And How to Counter Them), The ElderLaw
Report (Nov. 1997). See also Chalfin v. Beverly Enterprises, 741 F. Supp. 1162
(E.D. Pa. 1989) (UDAP claim based on allegation that a facility had a practice
of discharging residents who had applied for Medicaid).
11 Long-Term
Care Advocacy § 1.05[1].
12 The
ombuds program is mandated by federal law. 42 U.S.C. § 3027(a)(12). For
more information,see
Long-Term Care Advocacy § 2.27[2], containing a listing of all state ombuds
programs and their phone numbers at § 2.401.
13 A summary
of all the state UDAP statutes can be found in National Consumer Law Center,
Unfair and Deceptive Acts and Practices, Appendix A (4th ed. 1999 and Supp.),
hereafter "The UDAP manual"
14 See
UDAP manual ch. 8.
15 UDAP
manual § 3.2.7.
16 UDAP
manual §3.3.
17 Rohlfing
v. Manor Care, 172 F.R.D. 330, 350 (N.D. Ill. 1997);
18 Arenson
v. Whitehall Convalescent and Nursing Home, 164 F.R.D. 659 (N.D. Ill. 1996).
19 People
v. Casa Blanca Convalescent Homes, 206 Ca. Rptr. 164, 167-71, 176-77 (Cal. Ct.
App.1984)
20 Chalfin
v. Beverly Enterprises, 741 F. Supp. 1162, 1176-77 (E.D. Pa. 1989).
21 Health
Care Financing Administration, "Report to Congress: Appropriateness of
Minimum Nurse Staffing Ratios in Nursing Homes", August 2000. Available
at www.hcfa.gov.
22 See
e.g., State of Minnesota v. Alterra Healthcare Corporation, Clearinghouse No.
53,024 (Minn. 2000) (Minnesota Attorney General lawsuit against an assisted
living facility based on allegations of understaffing and neglect). More information
on this case is available at www.ag.state.mn.us. Elder v. Fischer, 717 N.E.
2s 730 (Ohio Ct. App. 1998) (Ohio SSI-eligible residents sued their residential
care facility under their state UDAP statute, alleging that the facility had
overcharged the residents); Klein v. VIA Hotel Corporation, 41 Cal. App. 4th
1133 (1996) (adult children sued a licensed residential care facility for wrongful
death of their mother).
23 See
generally Long-Term Care Advocacy § 10.06[1][a][i]. See, e.g., Continued
Care, Inc. v. Fournet, 979 S.W. 2d 419 (Tex. App. 1998) (negligent supervision);
Barry v. Manor Care, Inc., 1999 U.S. Dist. LEXIS 5928 (E.D. Pa. 1999) (negligent
hiring and training).
24 See
generally Long-Term Care Advocacy § 10.06[1][b] et seq. See, e.g., Barry
v. Manor Care, Inc., 1999 U.S. Dist. LEXIS 5928 (E.D. Pa. 1999) (nursing facility
resident struck by nurse aide); Rodebush v. Oklahoma Nursing Homes, 867 P. 2d
1241 (Okla. 1993) (nursing facility resident slapped by nurse aide); Stiffelman
v. Abrams, 655 S.W. 2d 522 (Mo. 1983) (nursing facility resident kicked and
struck by employees); Pounders v. Trinity Court Nursing Home, 576 S.W. 2d 934
(Ark. 1979) (false imprisonment claim).
25 See
generally Long-Term Care Advocacy § 10.06[1][f]. See, e.g., Brown v. University
Nursing Home, 496 S.W. 2d 503 (Tenn. Ct. App. 1972); McIntyre v. Transitional
Health Services, 1998 U.S. Dist. LEXIS 13965 (M.D.N.C. 1998); Arenson v. Whitehall
Convalescent and Nursing Home, 164 F.R.D. 659 (N.D. Ill. 1996). But see Stiffelman
v. Abrams, 655 S.W. 2d 522 (Mo. 1983) (court rejected a breach of contract cause
of action based on the death of a nursing facility resident).
26 See
generally Long-Term Care Advocacy § 10.06[1][g].
27 Claims
to consider include defenses based on contracts of adhesion, duress, lack of
capacity, and mandatory arbitration requirements. See generally UDAP manual
§ 5.2.3 (adhesion contracts), and § 7.7 (mandatory arbitration); Bruce
Vignery and Stephanie Edelstein, Litigating Long-Term Care Issues, reprinted
in National Consumer Law Center, 8th Annual Consumer Rights Litigation Conference
materials (1999); Charles P. Sabatino, Nursing Home Admission Contracts: Undermining
Rights the Old-Fashioned Way, 24 Clearinghouse Rev. 553 (1990).
28 Unconscionability
can be a defense to contract enforcement. Some states also have separate unconscionability
statutes allowing for affirmative claims. See UDAP manual §§ 3.3.4.4
and 4.4; National Consumer Law Center, The Cost of Credit: Regulation and Legal
Challenges § 11.6 (1995 and Supp.).
Note: This Consumer Concerns
reflects the current law only. Advocates should research the law since there
are likely to be changes after this publication.
A publication
of NCLC's National Legal Resource Initiative for Financially Distressed Older
Americans National Consumer Law Center - 77 Summer St., 10th Fl.- Boston, MA
02110 - 617/542-8010
