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Hidden video cameras are an effective tool in exposing instances of nursing home abuse or neglect and in monitoring the treatment of loved ones in these facilities. There have been many instances where recording devices have helped family members discover that the staff was providing negligent care or committing elder abuse. One recent case involved a nursing home employee hitting and taunting a resident who lay in bed. When such mistreatment occurs, video recordings provide powerful evidence of poor treatment that can lead to staff members’ being fired and can be used in a nursing home lawsuit or criminal prosecution.

However, the use of hidden cameras or other recording devices in a nursing home raises privacy concerns. Is it legal for a nursing home resident or family member to use these surveillance techniques? The short answer is yes, it is legal to use a hidden camera to catch neglectful or abusive nursing home employees. Still, it is important not to violate privacy laws while using these recording devices to prevent or expose elder abuse.

There are legal limits on how hidden cameras can be used to monitor the behavior of staff members in nursing homes. In Illinois, it is illegal to listen to or record a conversation unless everyone in that conversation has consented to the recording. Because of this law, it is important to make sure that your camera records video but does not record sound. You should also make sure that either your loved one or his or her legal guardian has consented to the use of a recording device. Otherwise, your Illinois nursing home attorney may not be able to use that video recording in your lawsuit as proof of abuse or neglect. You could also be at risk for criminal penalties for violating Illinois law.

Misconduct at nursing home takes many forms. Of course the most well-known way that these facilities act inappropriately is when the individual care they provide to residents is substandard, resulting in falls, pressure sores, wandering, over-medication, and other neglect outcomes. One of the main ways that facilities are held accountable for those lapses are when individual families seek legal recourse by filing a civil lawsuit.

However, a lawsuit is also sometimes appropriate to hold certain home accountable for most systematic problems, usually related to overbilling and misuse of taxpayers funds. Many homes rely on Medicaid (and some Medicare) enrollees. That means that most bills are actually paid by taxpayers. There are very specific rules about what services taxpayers will and will not pay for. Yet, in a rush to increase their bottom line as much as possible, far too many homes cut corners with those rules and sometime intentionally disregard them in order to increase profits. When they occurs, the law allows private individuals with knowledge of the situation to file suit. Those individuals are usually current or former employees of the home who eventually decide that they no long can be a part of an organization that acts in such a way.

Kickback Lawsuit

Nursing homes and hospitals often have close relationships. That is because individuals may go to and from one facility to another on different occasions. This relationship works both ways. On one hand, many seniors move into a nursing home only after a serious medical event which places them in a hospital. For example, after a heart attack, stroke, fall at home, or similar event, a senior may require hospitalization. Often, when the immediate injury is healed, the individual is still not in a condition to go back to prior living situation. That is why many seniors move into a nursing home directly into a nursing home.

Alternatively, while nursing homes do provide skilled medical care, they are not capable of providing every medical need for residents. When a nursing home resident suffers a serious medical emergency or an advanced ailment, then the resident must often go back into a hospital. This back and forth may happen several times, and there is therefore a clear relationship between many nursing homes and hospitals.

This is a natural relationship that is necessary to ensure that ailing seniors receive the exact care they need at the right time. However, this also sets up a tangential financial relationship between these entities. Hospitals often want to have the residents admitted for care when finances incentivize it. On the other hand, depending on insurance and payment structures, they often have the incentive to release patients–particularly those who have taken up a room for an extended length of time–into a nursing home. The nursing home obviously likes this as it is another bed filled and money coming in.

All those working on elder care issues understand that the vast majority of neglect goes unreported. This is a tragedy for two reasons. First, it means that individual seniors are forced to endure pain and suffering without help. Second, the under reporting means that more seniors in the future may be affected by neglect. That is because those who get away with mistreating seniors once are far more likely to do it again. Some caregivers who have a history of skirting requirements are often the ones found responsible for the most egregious cases of abuse and neglect.

For example, take a case out of California. We have already discussed the allegations against a woman who cared for ailing seniors in her own home. Headlines were made when the woman was charged with a felony following the death of one an 88-year old woman who was in her care. The senior had dementia and was under the woman’s care for five years. However, the quality of that care was suspect. That is because the woman developed incredibly serious (Stage IV) bedsores which ultimately led to her death.

Our neglect attorneys have worked on many cases where bedsores are at issue. Bed sores are almost always preventable, and when they arise, caregivers can be held responsible. Most of the time that responsibility comes in the form of civil lawsuits, which, for example, can provide financial compensation to those harmed. However, in more unique circumstances, those involved may also be punished criminally.

Most adequate elder care focuses on “quality of life.” But the phrase itself is somewhat elusive. In a few situations it is not necessary easy to determine if a certain course of conduct will improve one’s quality of life or make it worse. There are general principles that can be applied to better make choices on behalf of a senior loved one, but every decision is ultimately a personal one. What might be a welcome act or service for one person may be shunned by another. All of this is why we continue urge resident-centered care that is based upon specific understanding of an individual’s strengths, weakness, likes, and dislikes.

Feeding Tubes

One area where these questions are often asks relates to use of feeding tubes. An editorial from My Elder Advocate recently touched on the concerns, providing an interesting perspective on the use of these measures among those caring for seniors. In short, the article explains how at first blush it may seem like use of feeding tubes is a critical life-saving step. However, the truth is that there are serious questions about whether these tubes serve any function. In fact, in some cases seniors may ultimately suffer serious injury or death as a result of their use.

ProPublica recently issued a report which explores an important topic related to holding nursing homes accountable for mistakes and ensuring changes are made to prevent future harm. The story takes a look at federal oversight of nursing homes, particularly the scattered penalties for care lapses. Obviously, accountability and enforcement of rules is a crucial way quality standards are upheld at these homes. If there are no consequences for providing inadequate care, many facility owners and operators will provide sub-par services to maximize their own bottom line. In fact, many already do. But when it is well-known that errors will be costly, the incentive to prevent those errors increases dramatically.

Unfortunately, punishments are often not doled out consistently or evenly, perhaps limiting the deterrent function of public oversight.

Different Punishments

Those who follow issues related to elder care and nursing home neglect in Illinois are probably aware of the fact that poor care is not evenly dispersed across all long-term care facilities. Instead, there are often chronic problems at a smaller subset of facilities where preventable injuries occur time and again. That is not to say that nursing home neglect can’t occur everywhere–it certainly can–but overall there are certain home that are far more likely to cause harm.

This is exactly why it is incredibly important to be as diligent as possible when deciding where to have your loved one move if they need long-term care. If there is a choice between a few facilities, be sure to research the track record of those homes to determine if any of them have a series of problems related to poor care.

Yet, the reality is that there is often very little time to properly and fully vet a facility before having a loved one move in. They may be discharged from the hospital, and the need a new living location immediately. In that way, many families have no choice but to trust that the facility will abide by their legal requirement to provide appropriate care at all times to keep their relatives safe. Unfortunately, many homes fall far short of those requirements.

We recently touched on some concerns that were raised about several nursing homes that were not evacuated in the wake of Hurricane Sandy–even though they were in the “must evacuate” area as a result of their proximity to the ocean. Those in the facility during the storm explain that the rising waters flooded the first floor, took out the back-up generators, and presented a very real safety risk. Employees stated at the time that the decision not to evacuate was made by city officials, who told the caregivers to keep the vulnerable seniors residents in place.

Along the same lines, the New York Times reported recently on serious concerns raised by advocates about the care provided to some nursing home residents at one facility during and after the weather emergency. For example, one facility in Queens, New York saw its first floor underwater after winds knocked out the windows and rising water surged into the area. Many residents were on the upper floors of the facility at the time. When their power went out, they assumed that things would be fine, because the generators would soon kick back on. They didn’t. That is because those generators were engulfed by the water.

All of this led to serious, but predictable problems. As time dragged on without power, the residents became increasingly cold–there was no way to get heat. On top of that, they soon grew hungry. But there was a problem, the kitchen was on the flooded first floor, and there was not enough food stocked away by the owners before the storm hit. Residents also did not have adequate water. That means that they were stuck on the upper floors of the facility in the cold, thirsty and hungry. It was not until hours laters that emergency crews arrived and were able to evacuate the resident to emergency shelters.

Few nursing home administration details are talked about more in relation to ensuring proper care and avoiding neglect and abuse than staffing levels. The research effort was published by OnShift, and is available at the LTL Magazine online here. The main idea of the paper is to stress the importance of “staffing acuity.” It lists five reasons to make a focus on these staffing issues a top priority for long term care management.

The first of those reasons relates to quality of care. The paper pointed to research showing that “acuity drives better outcomes.” The paper notes that this care is a more “clinically driven and individualized approach.”

Important in identifying proper staffing levels is appropriate technologies and monitoring systems. The report note that changes in resident conditions, assessment, or intake rates affect what is an appropriate staffing level. In that way, every day (and every shift) can include the right number of staff members with the right skill set. Our lawyers who work on cases of abuse and neglect in Illinois are very familiar with the problems that come with mismatched staffing levels and skills. The sad truth is that most facilities have a long-way to go before their staffing is appropriate at all times. It is perhaps unsurprising that the problems usually stem to facilities having too few staff members who are not properly trained to ensure all residents receive the care they need. This is unacceptable, and those families affecting are well served by protecting their legal rights when it causes harm.

Knox News reported earlier this month on a follow-up to a tragic case of nursing home neglect and abuse on which we’ve previously posted. The underlying case involved the rape of an 89-year old woman with severe dementia. Late last month the senior resident told her family that earlier in the summer a man entered her room and raped her. She did not know the man. Eventually the police were called in and a rape test was performed. The test revealed DNA samples of the attacker–though the criminal has yet to be identified.

Of course this opened up a big question: how on earth did the man enter the room and have access to the vulnerable senior? Perhaps the most obvious answer is that the attacker may have been a male employee of the facility. Lawyers and other advocates working on these cases appreciate that sexual assault by caregivers is not unheard of.

The state Department of Health investigated the matter, issuing a suspension on new admissions into the facility after determining that the home’s current policies and procedures placed residents at risk of harm. This particular home is run by a large nursing home conglomerate which operates at least 225 facilities in 28 different states. In other words, if this company was cutting corners or not abiding by proper safety protocols, then tens of thousands of residents may be at risk.

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