Court upholds Revocation of CNA Certification for tying nursing home resident’s wheelchair to handrail

A Certified Nurses’ Aide who worked in a New Jersey nursing home has lost her Certification for tying a resident’s wheelchair to the hallway handrail, causing agitation, distress and confinement of the resident. The act was found to constitute abuse & neglect, and this finding has been placed next to her name on the New Jersey Nurse Aide Registry.

An administrative hearing was conducted on her initial appeal of the revocation and listing by the Department of Health. The Administrative Law Judge found, after hearing testimony of witnesses, that she had caused abuse or neglect, and affirmed the Department’s decision. On appeal, the Appellate Division of Superior Court upheld the decision, saying “It is the public policy of the State “to secure for elderly patients, residents and clients of health care facilities serving their specialized needs and problems, the same civil and human rights guaranteed to all citizens . . . .” N.J.S.A. 52:27G-1. Thus, a resident of a long-term care facility “has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.” 81 FR 68688, 68855 (2016); see also N.J.A.C. 8:39-4.1(a)(5). Such individuals are entitled “[t]o be treated with courtesy, consideration, and respect for the resident’s dignity and individuality.” N.J.A.C. 8:39-4.1(a)(12). To this end, “abuse” is defined as “the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish.” 42 C.F.R. § 488.301 (2003); see also N.J.S.A. 52:27G-2(a). “Neglect” is defined as the “failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness.” 42 C.F.R. § 488.301 (2003).” 

The case is Carmen Amador vs New Jersey Department of Health, A-4259-16T2, decision issued June 7, 2018. The written decision is not precedential (is not approved for publication) and is limited to its particular facts.

Call us for advice concerning nursing home placement, care plans and disputes …. 732-382-6070

Feeding the Patient is Part of the Plan of Care

What can you do if your loved one can’t feed himself but the nursing home staff just keep leaving the tray on his table? The Nursing Home Reform Act Residents’ Rights 42 CFR Ä 483 requires that provision of adequate nutrition be part of the services provided to all nursing home residents. The facility must provide adequate services to “attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care.” Dietary Services must be included in the Medicaid or medicare daily rate and cannot be billed to the patient separately, and this includes feeding. The facility must provide special equipment if that is what a resident needs to be able to feed him or herself, and in lieu of other certified staff dietary aides, a nursing home may employ a paid trained Feeding Assistants to take care of feeding certain patients who have non-complex feeding needs: ” (i) A facility must ensure that a feeding assistant provides dining assistance only for residents who have no complicated feeding problems.(ii) Complicated feeding problems include, but are not limited to, difficulty swallowing, recurrent lung aspirations, and tube or parenteral/IV feedings.”

I was responsible as legal Guardian for the care of a fellow who was confined to his bed in a nursing home for the last few months of his life due to various illnesses and weaknesses. When I would visit him, I often saw that his meal tray was on his table, the containers were opened, and spoonfuls of food were on the floor or on his bed or on himself. It was apparent that he could no longer hold his spoon. He was rapidly losing weight. The patient insisted that he could feed himself and didn’t need help, but clearly he wasn’t getting the nutrition he needed. Or he’d say he wasn’t hungry – clearly not true, as he ate eagerly when I fed him. I had a discussion with the case manager and they began assigning someone to sit with him and feed him and encourage him to eat.

The family of a nursing home resident is not responsible to feed their frail loved one. This is the facility’s legal duty. Call for a care planning meeting and address this with them if you are told that there “aren’t enough staff” or “not enough time” or “the family needs to do it” or “the patient keeps refusing.”

Call for legal advice about the rights of residents of nursing homes … 732-382-6070

Behavioral Therapy Techniques Show Promise for Alzheimers’ Patients

If you are caring for a person with Alzheimers’ dementia, you are probably seeing a number of behavioral changes that are difficult to understand and challenging to respond to. These are sometimes called “neuropsychiatric symptoms,” and they span the spectrum from apathy and depression to wandering, disinhibition, irritable verbal onslaughts, agitated pacing, and hallucinations. Physicians sometimes have success in managing these symptoms by prescribing  medications to address anxiety, restlessness/agitation or psychosis. Studies are ongoing and there’s an excellent article about them by Jeffrey L. Cummings, M.D. in the Spring, 2016 issue of  AFA Care Quarterly.

Non-pharmacologic  interventions are the province of behavioral therapy. Caregivers can learn what triggers an agitated response and can avoid those triggers; they can learn to engage the patient in activities which increase socialization and stimulation while avoiding an increase in the patient’s confusion or distress. Each patient is of course unique, and a caregiver would be wise to keep notes of behavioral changes, stimuli and triggers, as well as what responses seem effective and which just made things worse. This is crucial information for the physician, as well as for other people who will be caring for the individual.

If your loved one needs to be placed in a nursing home, a full medical report is requested and it is important to discuss these behavioral issues as you work with the staff to develop the individualized care plan. The Nursing Home Resident’s Bill of Rights and federal Medicare and Medicaid laws require a skilled nursing facility to “provide services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, in accordance with a written plan of care.” See 42 USC 1395i-3(b). It has to be an individualized plan. You will be helping the staff to do the best job for your loved one if you share with them what you know about him or her.

We advocate for nursing home residents in care planning meetings. For elder care advice and representation, call us at … 732-382-6070

Even in a nursing home, palliative care can be used to ease the way at the end of life

When a person moves out of their home and moves into a nursing home for their long-term care, they become a resident at the facility, because the long-term care facility (LTCF) is their new home. The resident  will receive mail there, can submit an absentee voting ballot from there, receive personal visitors and telephone calls there. This is why federal law and state law are couched in terms of “Resident’s Rights” rather than “Patient’s Rights.”

Many articles and studies can be found which show that at the end of life, people have a preference to die at home. If the “home” is a nursing home, facilities must develop an individualized care plan that is geared to the particular resident’s needs and goals. If the goal is comfort and avoiding medical interventions, the care plan can be worked around a palliative care plan which takes into account things such as inevitable weight loss, avoiding the insertion of a feeding tube, and treating the symptoms without requiring hospitalization to detect the cause of a condition (such as a fever). The health care proxy can refuse medical evaluations when detecting the cause will only lead to treatment which is unwanted. The point of palliative care is comfort care and the avoidance of a hospitalization, which can be a traumatizing transition for a resident that can lead to further complications and unwanted interventions.

The Centers for Medicaid and Medicare Services (CMS) publishes the RAI as the methodology for long term care facilities to assess and develop services. Look at page 1-9 in particular, section c.: “Identification of Outcomes—Determining the expected outcomes forms the basis for evaluating resident-specific goals and interventions that are designed to help residents achieve those goals. This also assists the interdisciplinary team in determining who needs to be involved to support the expected resident outcomes. Outcomes identification reinforces individualized care tenets by promoting the resident’s active participation in the process.” CMS MDS and RAI nursing home (May 2013)

The resident’s doctor can issue standing Orders for the resident’s chart such as an out-of-hospital DNR (Do Not Resuscitate) or a DNH (Do Not Hospitalize). The health care proxy (and the resident, if possible) should have a discussion about the LTCF’s policy on Do Not Hospitalize orders. Under what circumstances would the facility require that the resident be transferred to an acute care facility? Insist on a thorough exploration with the facility’s team to determine what alternatives the Home can offer that would keep the resident comfortable, keep the other residents safe, and enable the resident to remain “at home.”

These techniques can help the health care representative carry out the resident’s wishes. A great deal of thought needs to be put into such planning, because health conditions can take unexpected turns. As always, creative advocacy based in the law is the key to success.

For legal advice and representation on elder care issues and nursing home care plans, call us at 732-382-6070