Minnesota Nursing Home Neglect Lawyer, Elder Abuse Attorney Minneapolis MN (5)

Financial Exploitation in the News

Written By: Kenneth LaBore | Published On: 5th March 2010 | Category: Financial Exploitation | RSS Feed

There was a story today in the Austin News that charges were dismissed against a woman who was accused of financially exploiting a vulnerable adult. See the story: Mower prosecutors dismiss woman’s felony charges.

Although there was not a criminal case in this instance the story does call attention to the growing problem of financial exploitation of vulnerable adults, at home by friends, family and by caregivers.
As an attorney that handles abuse and neglect cases in Minnesota I have seen many forms of criminal activity. Unfortunately, there are situations where a resident in a nursing home or other type of senior care facility is taken advantage of and financially exploited.

The Health Care Bill of Rights, Minnesota Statute § 144.65, Subd. 25 allows competent residents may manage their personal affairs, or shall be given at least a quarterly accounting or financial transactions on their behalf if they delegate this responsibility in accordance with the laws of Minnesota to the facility for any period of time.

The Minnesota Vulnerable Adults Act Minnesota Statute § 626.557 establishings when mandated reporters need to “report” elder abuse and neglect:

626.557 REPORTING OF MALTREATMENT OF VULNERABLE ADULTS.
Subdivision 1.Public policy.
The legislature declares that the public policy of this state is to protect adults who, because of physical or mental disability or dependency on institutional services, are particularly vulnerable to maltreatment; to assist in providing safe environments for vulnerable adults; and to provide safe institutional or residential services, community-based services, or living environments for vulnerable adults who have been maltreated.
In addition, it is the policy of this state to require the reporting of suspected maltreatment of vulnerable adults, to provide for the voluntary reporting of maltreatment of vulnerable adults, to require the investigation of the reports, and to provide protective and counseling services in appropriate cases.
Subd. 2. [Repealed, 1995 c 229 art 1 s 24]
Subd. 3.Timing of report.
(a) A mandated reporter who has reason to believe that a vulnerable adult is being or has been maltreated, or who has knowledge that a vulnerable adult has sustained a physical injury which is not reasonably explained shall immediately report the information to the common entry point. If an individual is a vulnerable adult solely because the individual is admitted to a facility, a mandated reporter is not required to report suspected maltreatment of the individual that occurred prior to admission, unless:
(1) the individual was admitted to the facility from another facility and the reporter has reason to believe the vulnerable adult was maltreated in the previous facility; or
(2) the reporter knows or has reason to believe that the individual is a vulnerable adult as defined in section 626.5572, subdivision 21, clause (4).
(b) A person not required to report under the provisions of this section may voluntarily report as described above.
(c) Nothing in this section requires a report of known or suspected maltreatment, if the reporter knows or has reason to know that a report has been made to the common entry point.
(d) Nothing in this section shall preclude a reporter from also reporting to a law enforcement agency.
(e) A mandated reporter who knows or has reason to believe that an error under section 626.5572, subdivision 17, paragraph (c), clause (5), occurred must make a report under this subdivision. If the reporter or a facility, at any time believes that an investigation by a lead agency will determine or should determine that the reported error was not neglect according to the criteria under section 626.5572, subdivision 17, paragraph (c), clause (5), the reporter or facility may provide to the common entry point or directly to the lead agency information explaining how the event meets the criteria under section 626.5572, subdivision 17, paragraph (c), clause (5). The lead agency shall consider this information when making an initial disposition of the report under subdivision 9c.
Subd. 3a.Report not required.
The following events are not required to be reported under this section:
(1) A circumstance where federal law specifically prohibits a person from disclosing patient identifying information in connection with a report of suspected maltreatment, unless the vulnerable adult, or the vulnerable adult’s guardian, conservator, or legal representative, has consented to disclosure in a manner which conforms to federal requirements. Facilities whose patients or residents are covered by such a federal law shall seek consent to the disclosure of suspected maltreatment from each patient or resident, or a guardian, conservator, or legal representative, upon the patient’s or resident’s admission to the facility. Persons who are prohibited by federal law from reporting an incident of suspected maltreatment shall immediately seek consent to make a report.
(2) Verbal or physical aggression occurring between patients, residents, or clients of a facility, or self-abusive behavior by these persons does not constitute abuse unless the behavior causes serious harm. The operator of the facility or a designee shall record incidents of aggression and self-abusive behavior to facilitate review by licensing agencies and county and local welfare agencies.
(3) Accidents as defined in section 626.5572, subdivision 3.
(4) Events occurring in a facility that result from an individual’s error in the provision of therapeutic conduct to a vulnerable adult, as provided in section 626.5572, subdivision 17, paragraph (c), clause (4).
(5) Nothing in this section shall be construed to require a report of financial exploitation, as defined in section 626.5572, subdivision 9, solely on the basis of the transfer of money or property by gift or as compensation for services rendered.

Vulnerable Adults Act Minnesota Statute § 626.5772 Subd. 9. Defines financial exploitation.

“Financial exploitation” means:
(a) In breach of a fiduciary obligation recognized elsewhere in law, including pertinent regulations, contractual obligations, documented consent by a competent person, or the obligations of a responsible party under section 144.6501, a person:
(1) engages in unauthorized expenditure of funds entrusted to the actor by the vulnerable adult which results or is likely to result in detriment to the vulnerable adult; or
(2) fails to use the financial resources of the vulnerable adult to provide food, clothing, shelter, health care, therapeutic conduct or supervision for the vulnerable adult, and the failure results or is likely to result in detriment to the vulnerable adult.
(b) In the absence of legal authority a person:
(1) willfully uses, withholds, or disposes of funds or property of a vulnerable adult;
(2) obtains for the actor or another the performance of services by a third person for the wrongful profit or advantage of the actor or another to the detriment of the vulnerable adult;
(3) acquires possession or control of, or an interest in, funds or property of a vulnerable adult through the use of undue influence, harassment, duress, deception, or fraud; or
(4) forces, compels, coerces, or entices a vulnerable adult against the vulnerable adult’s will to perform services for the profit or advantage of another.
(c) Nothing in this definition requires a facility or caregiver to provide financial management or supervise financial management for a vulnerable adult except as otherwise required by law.

To reduce the risk of financial exploitation you may want to:

• Conducting background checks on any individual who is handling the senior’s finances, or comes into senior’s home.
• Keep valuables in safety deposit box at bank or other safe place if possible.
• Keep copies of bills and receipts for expenses.
• Request regular accounting concerning any expenditures with copies of paid bills.
• Report suspected abuse to police, friend and family.

If you or a family member has been the victim of financial exploitation or any other type of abuse or neglect in a nursing home or other health care residence, please contact attorney Kenneth LaBore for a free consultation.

This website is not intended to provide legal advice as each situation is different and specific factual information must be obtained before an attorney is able to assess the legal questions relevant to your situation.

If you or a loved one has suffered an injury from neglect or abuse in a nursing home or other care facility that serves the elderly in Minnesota please contact our firm for a free consultation and information regarding the obligations of the facility and your rights as a resident or concerned family member. To contact Attorney Kenneth L. LaBore, directly please send an email to KlaBore@mnnursinghomeneglect.com or call Ken at 612-767-7503.

Hopkins Health Care Aide was Terminated for Stealing from Resident

A home health aide at the Augustana Chapel View Apartments had stolen from a resident by paying about $1000.00 of bills with the resident’s checks. According to a story in the Star & Tribune the aide was terminated was fired less than two months after being accused of theft. The newsstory went on to explain how in another facility owned by Augustana Care Corp., of Minneapolis, a home-care aide took OxyContin narcotic pain medicine from a resident and replaced it with Ibuprofen, according to a state investigator.

As an attorney that handles abuse and neglect cases in Minnesota I have seen many forms of criminal activity. Unfortunately, there are situations where a resident in a nursing home or other type of senior care facility is taken advantage of and financially exploited.

For the rest of the Star and Tribune article title: Health aide stole from Hopkins care patient.

The Minnesota Vulnerable Adults Act Minnesota Statute § 626.557 establishings when mandated reporters need to “report” elder abuse and neglect:

Vulnerable Adults Act Minnesota Statute § 626.5772 Subd. 9. Defines financial exploitation.

To reduce the risk of financial exploitation you may want to:

Overuse of Antipsychotic Medication in Nursing Homes Questioned

Written By: Kenneth LaBore | Published On: 17th February 2010 | Category: Medication Errors, Nursing Home Care Issues | RSS Feed

According to an Article in Modern Medicine; Elderly patients newly admitted to nursing homes are more likely to be prescribed antipsychotics if the nursing home has a high prescribing rate for antipsychotics, according to a study in the Jan. 11 Archives of Internal Medicine. A related study determined that an FDA advisory on the use of atypical antipsychotics in elderly dementia patients resulted in decreased use.

The article goes on to state: Yong Chen, M.D., from the University of Massachusetts Medical School in Worcester, and colleagues assessed factors associated with antipsychotic prescribing in 16,586 newly admitted nursing home residents. They found that more than 29 percent of residents received at least one antipsychotic medication, even though 32 percent of them had no clinical indication for the medication. After adjusting for potential clinical indications, the likelihood of receiving medication was higher for residents in nursing homes with the highest antipsychotic prescribing rates than the lowest rates (risk ratio, 1.37).
For the rest of the article see, Antipsychotic Use in Elderly, Prescribing Rates ExaminedFDA warning leads to decreased use of the drugs among elderly patients with dementia.

Many times the resident is confused due to medication they are taking, or the onset of cognitive diseases such as Alzheimer’s and dementia. It is the nursing home’s duty to ensure the resident is adequately monitored by qualified staff to ensure their safety. Many times there are not enough staff members to respond to all the care needs of the residents and to monitor the safety alarms in place to protect residents from falls.

If you or a loved one has suffered an injury from neglect or abuse in a nursing home or other care facility that serves the elderly in Minnesota please contact our firm for a free consultation and information regarding the obligations of the facility and your rights as a resident or concerned family member. To contact Attorney Kenneth L. LaBore, directly please send an email to Klabore@mnnursinghomeneglect.com, or call Ken at 612-767-7503.

Resident Suffers Fall at St. Anthony Health Center

Written By: Kenneth LaBore | Published On: 17th February 2010 | Category: Fall Injuries | RSS Feed

According to a Star and Tribune article dated February 11, 2010 a St. Anthony nursing home resident was injured when she fell from her bed moments after a nursing assistant left the woman’s side with various safety precautions not in place, and the woman’s condition worsened until her death four days later.
Apparently, state health investigators cited the unnamed aide for neglect. The fall occurred Oct. 7 at St. Anthony Health Center, causing a hematoma on the woman’s forehead, the Department of Health investigative report said. Soon after she fell, the woman was “very drowsy” with weakness in her limbs, followed by unresponsiveness and difficulty breathing.

With “significant physical status changes,” according to the report, the woman was admitted to hospice care and died Oct. 11th. The nursing assistant was suspended one day after the woman fell and fired the day after the resident died, having admitted the neglect, according to the news report.

Apparently, the aide was caring for the woman when another resident’s sensor alarm beeped. The employee left the woman unattended and “without her safety precautions in place” to care for the other resident. A nurse found the woman on the floor in her room. At the time the woman fell, according to the report, the resident’s sensor alarm was not set, the bed was not in the lowered position and a floor mat was not next to the bed. All were required precautions outlined in the woman’s care plan.

For the rest of the story, An aide left the resident without the ordered safety precautions just before she fell.

According to an article from the American Association of Orthopaedic Surgeons:
The cost of falls among older people is enormous because of the high death toll, disabling conditions and recovery in hospitals and rehabilitation institutions. The United States spends more than $20 billion annually for the treatment of injuries to older people after falls. The majority of the cost is for hip fracture care, which averaged $37,000 per patient in 2006. The Center for Disease Control and Prevention (CDC) estimates that by the year 2020, the annual direct and indirect cost of fall injuries is expected to reach $54.9 billion (in 2007 dollars).

Thirty percent of people over the age of 65 will fall each year. In 2006, about 1.8 million people 65 and older were treated in emergency departments for nonfatal injuries from falls, and more than 433,000 of these patients were hospitalized.

Ninety percent of the 380,000 hip fractures treated annually in the United States occur as a result of a fall.
In 2006, there were more than 380,000 hip fractures, or about 1,050 hip fractures a day.
Approximately 25% of hip fracture patients will make a full recovery; 40% will require nursing home admission; 50% will be dependent upon a cane or a walker; and 20% will die in one year.
The National Osteoporosis Foundation reports that a total of 15,802 persons aged 65 years and older died as a result of injuries from falls in 2005.

As an attorney that handles abuse and neglect cases most forms of neglect are preventable situations, including falls. Often the underlying reason for the falls and resulting serious injuries to elderly nursing home residents is a lack of adequately trained and supervised staff. Many times the nusing home attempts to reduce costs by replacing highly training RN nursing staff with less trained and lower paid LPNs. There is a controversy presently on this issue with the Minnesota Board of Nursing considering a position that would broaden the scope of the duties a LPN can perform. This will undoubtedly result in an increase in the number of cases of injuries due to abuse and neglect of elderly nursing home residents. It is necessary to have staff with sufficient experience and training to know what to look for in monitoring and assessing a resident to make sure they stay save.

Many times the LPNs are also either working as the only nurse on duty or may even be the supervising nurse. Presently, a LPN should not be doing assessments but rather only taking vital signs and making observations to be interpreted by a more skilled RN, Nurse Practioner or Doctor. The LPN nurse does not have the authority to change Care Plans for residents and is not trained to identify warning signs registered nurses are familiar with.

IT IS IMPERATIVE THAT ONLY RNs be ALLOWED To Make Assessments, the most vulnerable population of citizens will be affected by a change that allows LPNs to make assessments in an attempt to control costs. It is not a bargain if the under-skilled LPN costs the life of a resident, through improper training and being placed into a position which requires qualifications they do not possess.

If you or a loved one has suffered an injury from neglect or abuse in a nursing home or other care facility that serves the elderly in Minnesota please contact our firm for a free consultation and information regarding the obligations of the facility and your rights as a resident or concerned family member. To contact Attorney Kenneth L. LaBore, directly please send an email to Klabore@mnnursinghomeneglect.com, or call Ken at 612-767-7503.

Be on the Look out for Medicare – Medicaid Fraud in Minnesota Nursing Homes

Written By: Kenneth LaBore | Published On: 7th February 2010 | Category: Medicare/Medicare Billing Fraud, Nursing Home Care Issues | RSS Feed

False Billing to Medicare and Medicaid and other Fraud in Nursing Homes
Fraud can occur in a number of different ways. In many instances, the nursing home staff will not provide the documentation needed to Medicaid or Medicare. In other instances, the nursing home make false claims to Medicare or Medicare on your behalf in attempt to bolster profits from the facility. Nursing Homes and other Medicare and Medicaid medical providers are required to only bill for actual services provided to residents. If you suspect that services billed to Medicaid and Medicare is not being provided, then it may be fraud contact a nursing home fraud lawyer to assist you investigate the matter and hold the facility or other perpetrator accountable.
The rules and regulations surrounding healthcare fraud are complex, we can assist you in ensuring the care is provided as needed and that the facility is held accountable for any attempts to defraud the state or federal government. There is both a state and federal False Claims Act, create a cause of action against facilities that participate in Medicare and/or Medicare Fraud. This type of claim is often called a “Qui tam” claim and the “whistleblower” may be entitled to compensation for orignal source information which substantiates fraud sufficient to receive the support of the Minnesota Attorney General’s office or the federal Department of Justice.
When it comes to how you handle your finances, under the Minnesota Nursing Home Residents’ Bill of Rights, you have the right to “manage your own personal financial affairs, unless a court has decided otherwise. You may delegate this responsibility to the facility for a period of time. The facility must provide you with at least a quarterly accounting of your financial transactions.”
The Vulnerable Adults Act Prohibits Financial Exploitation of Nursing Home Residents
Minnesota Statute § 626.5572, Subd. 9. Financial exploitation.
“Financial exploitation” means:
(a) In breach of a fiduciary obligation recognized elsewhere in law, including pertinent regulations, contractual obligations, documented consent by a competent person, or the obligations of a responsible party under section 144.6501, a person:
(1) engages in unauthorized expenditure of funds entrusted to the actor by the vulnerable adult which results or is likely to result in detriment to the vulnerable adult; or
(2) fails to use the financial resources of the vulnerable adult to provide food, clothing, shelter, health care, therapeutic conduct or supervision for the vulnerable adult, and the failure results or is likely to result in detriment to the vulnerable adult.
(b) In the absence of legal authority a person:
(1) willfully uses, withholds, or disposes of funds or property of a vulnerable adult;
(2) obtains for the actor or another the performance of services by a third person for the wrongful profit or advantage of the actor or another to the detriment of the vulnerable adult;
(3) acquires possession or control of, or an interest in, funds or property of a vulnerable adult through the use of undue influence, harassment, duress, deception, or fraud; or
(4) forces, compels, coerces, or entices a vulnerable adult against the vulnerable adult’s will to perform services for the profit or advantage of another.
(c) Nothing in this definition requires a facility or caregiver to provide financial management or supervise financial management for a vulnerable adult except as otherwise required by law.

A nursing home billing for care they are not providing or substandard care may be participating in Medicare or Medicaid fraud for failing to use the financial resources of the vulnerable adult to provide food, clothing, shelter, health care, therapeutic conduct or supervision for the vulnerable adult, and the failure results or is likely to result in detriment to the vulnerable adult.

Minnesota Nursing Home Abuse is Preventable

Written By: Kenneth LaBore | Published On: 7th February 2010 | Category: Uncategorized | RSS Feed

Physical and Psychological Abuse of Nursing Home Residents

Abuse and Neglect in Nursing Homes

Sometimes it is difficult to determine if there was an incident of abuse or neglect suffered by a nursing home resident. Due to the complex nature of the care needs of many residents it is not always immediately evident if a person’s condition is the result of declining health or a disease process or due to either physical abuse or more subtly neglect.

Federal Regulations Prohibit Abuse and Neglect of Nursing Home Residents

42 CFR § 483.10 Resident rights.

The resident has a right to a dignified existence, self-determination, and communication with and access to persons and services inside and outside the facility. A facility must protect and promote the rights of each resident, including each of the following rights:

(a) Exercise of rights. (1) The resident has the right to exercise his or her rights as a resident of the facility and as a citizen or resident of the United States.

(2) The resident has the right to be free of interference, coercion, discrimination, and reprisal from the facility in exercising his or her rights.

(3) In the case of a resident adjudged incompetent under the laws of a State by a court of competent jurisdiction, the rights of the resident are exercised by the person appointed under State law to act on the resident’s behalf.

(4) In the case of a resident who has not been adjudged incompetent by the State court, any legal-surrogate designated in accordance with State law may exercise the resident’s rights to the extent provided by State law.

Minnesota law also prohibits abuse and Neglect of Nursing Home Residents

Vulnerable Adult’s Act Minnesota Statute § 626.5572, Subd. 2. Abuse.

“Abuse” means:

(a) An act against a vulnerable adult that constitutes a violation of, an attempt to violate, or aiding and abetting a violation of:
(1) assault in the first through fifth degrees as defined in sections 609.221 to 609.224;
(2) the use of drugs to injure or facilitate crime as defined in section 609.235;
(3) the solicitation, inducement, and promotion of prostitution as defined in section 609.322; and
(4) criminal sexual conduct in the first through fifth degrees as defined in sections 609.342 to 609.3451.
A violation includes any action that meets the elements of the crime, regardless of whether there is a criminal proceeding or conviction.
(b) Conduct which is not an accident or therapeutic conduct as defined in this section, which produces or could reasonably be expected to produce physical pain or injury or emotional distress including, but not limited to, the following:
(1) hitting, slapping, kicking, pinching, biting, or corporal punishment of a vulnerable adult;
(2) use of repeated or malicious oral, written, or gestured language toward a vulnerable adult or the treatment of a vulnerable adult which would be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing, or threatening;
(3) use of any aversive or deprivation procedure, unreasonable confinement, or involuntary seclusion, including the forced separation of the vulnerable adult from other persons against the will of the vulnerable adult or the legal representative of the vulnerable adult; and
(4) use of any aversive or deprivation procedures for persons with developmental disabilities or related conditions not authorized under section 245.825.
(c) Any sexual contact or penetration as defined in section 609.341, between a facility staff person or a person providing services in the facility and a resident, patient, or client of that facility.
(d) The act of forcing, compelling, coercing, or enticing a vulnerable adult against the vulnerable adult’s will to perform services for the advantage of another.
(e) For purposes of this section, a vulnerable adult is not abused for the sole reason that the vulnerable adult or a person with authority to make health care decisions for the vulnerable adult under sections 144.651, 144A.44, chapter 145B, 145C or 252A, or section 253B.03 or 524.5-313, refuses consent or withdraws consent, consistent with that authority and within the boundary of reasonable medical practice, to any therapeutic conduct, including any care, service, or procedure to diagnose, maintain, or treat the physical or mental condition of the vulnerable adult or, where permitted under law, to provide nutrition and hydration parenterally or through intubation. This paragraph does not enlarge or diminish rights otherwise held under law by:
(1) a vulnerable adult or a person acting on behalf of a vulnerable adult, including an involved family member, to consent to or refuse consent for therapeutic conduct; or
(2) a caregiver to offer or provide or refuse to offer or provide therapeutic conduct.
(f) For purposes of this section, a vulnerable adult is not abused for the sole reason that the vulnerable adult, a person with authority to make health care decisions for the vulnerable adult, or a caregiver in good faith selects and depends upon spiritual means or prayer for treatment or care of disease or remedial care of the vulnerable adult in lieu of medical care, provided that this is consistent with the prior practice or belief of the vulnerable adult or with the expressed intentions of the vulnerable adult.
(g) For purposes of this section, a vulnerable adult is not abused for the sole reason that the vulnerable adult, who is not impaired in judgment or capacity by mental or emotional dysfunction or undue influence, engages in consensual sexual contact with:
(1) a person, including a facility staff person, when a consensual sexual personal relationship existed prior to the caregiving relationship; or
(2) a personal care attendant, regardless of whether the consensual sexual personal relationship existed prior to the caregiving relationship.

Minnesota Statute § 626.5572, Subd. 9. Financial exploitation.

“Financial exploitation” means:

(a) In breach of a fiduciary obligation recognized elsewhere in law, including pertinent regulations, contractual obligations, documented consent by a competent person, or the obligations of a responsible party under section 144.6501, a person:
(1) engages in unauthorized expenditure of funds entrusted to the actor by the vulnerable adult which results or is likely to result in detriment to the vulnerable adult; or
(2) fails to use the financial resources of the vulnerable adult to provide food, clothing, shelter, health care, therapeutic conduct or supervision for the vulnerable adult, and the failure results or is likely to result in detriment to the vulnerable adult.
(b) In the absence of legal authority a person:
(1) willfully uses, withholds, or disposes of funds or property of a vulnerable adult;
(2) obtains for the actor or another the performance of services by a third person for the wrongful profit or advantage of the actor or another to the detriment of the vulnerable adult;
(3) acquires possession or control of, or an interest in, funds or property of a vulnerable adult through the use of undue influence, harassment, duress, deception, or fraud; or
(4) forces, compels, coerces, or entices a vulnerable adult against the vulnerable adult’s will to perform services for the profit or advantage of another.
(c) Nothing in this definition requires a facility or caregiver to provide financial management or supervise financial management for a vulnerable adult except as otherwise required by law.

“Initial disposition” is the lead agency’s determination of whether the report will be assigned for further investigation.

Minnesota Statute § 626.5572, Subd. 15. Maltreatment.

“Maltreatment” means abuse as defined in subdivision 2, neglect as defined in subdivision 17, or financial exploitation as defined in subdivision 9.

Minnesota Statute § 626.5572, Subd. 17. Neglect.

“Neglect” means:

(a) The failure or omission by a caregiver to supply a vulnerable adult with care or services, including but not limited to, food, clothing, shelter, health care, or supervision which is:

(1) reasonable and necessary to obtain or maintain the vulnerable adult’s physical or mental health or safety, considering the physical and mental capacity or dysfunction of the vulnerable adult; and

(2) which is not the result of an accident or therapeutic conduct.

(b) The absence or likelihood of absence of care or services, including but not limited to, food, clothing, shelter, health care, or supervision necessary to maintain the physical and mental health of the vulnerable adult which a reasonable person would deem essential to obtain or maintain the vulnerable adult’s health, safety, or comfort considering the physical or mental capacity or dysfunction of the vulnerable adult.

(1) the vulnerable adult or a person with authority to make health care decisions for the vulnerable adult under sections 144.651, 144A.44, chapter 145B, 145C, or 252A, or sections 253B.03 or 524.5-101 to 524.5-502, refuses consent or withdraws consent, consistent with that authority and within the boundary of reasonable medical practice, to any therapeutic conduct, including any care, service, or procedure to diagnose, maintain, or treat the physical or mental condition of the vulnerable adult, or, where permitted under law, to provide nutrition and hydration parenterally or through intubation; this paragraph does not enlarge or diminish rights otherwise held under law by:

(i) a vulnerable adult or a person acting on behalf of a vulnerable adult, including an involved family member, to consent to or refuse consent for therapeutic conduct; or

(ii) a caregiver to offer or provide or refuse to offer or provide therapeutic conduct; or

(2) the vulnerable adult, a person with authority to make health care decisions for the vulnerable adult, or a caregiver in good faith selects and depends upon spiritual means or prayer for treatment or care of disease or remedial care of the vulnerable adult in lieu of medical care, provided that this is consistent with the prior practice or belief of the vulnerable adult or with the expressed intentions of the vulnerable adult;

(3) the vulnerable adult, who is not impaired in judgment or capacity by mental or emotional dysfunction or undue influence, engages in consensual sexual contact with:

(i) a person including a facility staff person when a consensual sexual personal relationship existed prior to the caregiving relationship; or

(ii) a personal care attendant, regardless of whether the consensual sexual personal relationship existed prior to the caregiving relationship; or

(4) an individual makes an error in the provision of therapeutic conduct to a vulnerable adult which does not result in injury or harm which reasonably requires medical or mental health care; or

(5) an individual makes an error in the provision of therapeutic conduct to a vulnerable adult that results in injury or harm, which reasonably requires the care of a physician, and:

(i) the necessary care is provided in a timely fashion as dictated by the condition of the vulnerable adult;

(ii) if after receiving care, the health status of the vulnerable adult can be reasonably expected, as determined by the attending physician, to be restored to the vulnerable adult’s preexisting condition;

(iii) the error is not part of a pattern of errors by the individual;

(iv) if in a facility, the error is immediately reported as required under section 626.557, and recorded internally in the facility;

(v) if in a facility, the facility identifies and takes corrective action and implements measures designed to reduce the risk of further occurrence of this error and similar errors; and

(vi) if in a facility, the actions required under items (iv) and (v) are sufficiently documented for review and evaluation by the facility and any applicable licensing, certification, and ombudsman agency.

(d) Nothing in this definition requires a caregiver, if regulated, to provide services in excess of those required by the caregiver’s license, certification, registration, or other regulation.

(e) If the findings of an investigation by a lead agency result in a determination of substantiated maltreatment for the sole reason that the actions required of a facility under paragraph (c), clause (5), item (iv), (v), or (vi), were not taken, then the facility is subject to a correction order. An individual will not be found to have neglected or maltreated the vulnerable adult based solely on the facility’s not having taken the actions required under paragraph (c), clause (5), item (iv), (v), or (vi). This must not alter the lead agency’s determination of mitigating factors under section 626.557, subdivision 9c, paragraph (c).

Minnesota Statute § 626.5572, Subd. 21. Vulnerable adult.

(a) “Vulnerable adult” means any person 18 years of age or older who:

(1) is a resident or inpatient of a facility;

(2) receives services at or from a facility required to be licensed to serve adults under sections 245A.01 to 245A.15, except that a person receiving outpatient services for treatment of chemical dependency or mental illness, or one who is served in the Minnesota sex offender program on a court-hold order for commitment, or is committed as a sexual psychopathic personality or as a sexually dangerous person under chapter 253B, is not considered a vulnerable adult unless the person meets the requirements of clause (4);

(3) receives services from a home care provider required to be licensed under section 144A.46; or from a person or organization that exclusively offers, provides, or arranges for personal care assistant services under the medical assistance program as authorized under sections 256B.04, subdivision 16, 256B.0625, subdivision 19a, 256B.0651, 256B.0653 to 256B.0656, and 256B.0659; or

(4) regardless of residence or whether any type of service is received, possesses a physical or mental infirmity or other physical, mental, or emotional dysfunction:

(i) that impairs the individual’s ability to provide adequately for the individual’s own care without assistance, including the provision of food, shelter, clothing, health care, or supervision; and

(ii) because of the dysfunction or infirmity and the need for care or services, the individual has an impaired ability to protect the individual’s self from maltreatment.

(b) For purposes of this subdivision, “care or services” means care or services for the health, safety, welfare, or maintenance of an individual.

According to Nursing Home Patient Bill of Rights,

Minnesota Statute § 144.651, Subd. 14. Freedom from maltreatment.

Patients and residents shall be free from maltreatment as defined in the Vulnerable Adults Protection Act. “Maltreatment” means conduct described in section 626.5572, subdivision 15, or the intentional and nontherapeutic infliction of physical pain or injury, or any persistent course of conduct intended to produce mental or emotional distress. Every patient and resident shall also be free from nontherapeutic chemical and physical restraints, except in fully documented emergencies, or as authorized in writing after examination by a patient’s or resident’s physician for a specified and limited period of time, and only when necessary to protect the resident from self-injury or injury to others.

Minnesota Statute § 626.5572, Subd. 33. Restraints.

(a) Competent nursing home residents, family members of residents who are not competent, and legally appointed conservators, guardians, and health care agents as defined under section 145C.01, have the right to request and consent to the use of a physical restraint in order to treat the medical symptoms of the resident.

(b) Upon receiving a request for a physical restraint, a nursing home shall inform the resident, family member, or legal representative of alternatives to and the risks involved with physical restraint use. The nursing home shall provide a physical restraint to a resident only upon receipt of a signed consent form authorizing restraint use and a written order from the attending physician that contains statements and determinations regarding medical symptoms and specifies the circumstances under which restraints are to be used.

(1) document that the procedures outlined in that paragraph have been followed;

(2) monitor the use of the restraint by the resident; and

(3) periodically, in consultation with the resident, the family, and the attending physician, reevaluate the resident’s need for the restraint.

(d) A nursing home shall not be subject to fines, civil money penalties, or other state or federal survey enforcement remedies solely as the result of allowing the use of a physical restraint as authorized in this subdivision. Nothing in this subdivision shall preclude the commissioner from taking action to protect the health and safety of a resident if:

(1) the use of the restraint has jeopardized the health and safety of the resident; and

(2) the nursing home failed to take reasonable measures to protect the health and safety of the resident.

(e) For purposes of this subdivision, “medical symptoms” include:

(1) a concern for the physical safety of the resident; and

(2) physical or psychological needs expressed by a resident. A resident’s fear of falling may be the basis of a medical symptom.

A written order from the attending physician that contains statements and determinations regarding medical symptoms is sufficient evidence of the medical necessity of the physical restraint.

(f) When determining nursing facility compliance with state and federal standards for the use of physical restraints, the commissioner of health is bound by the statements and determinations contained in the attending physician’s order regarding medical symptoms. For purposes of this order, “medical symptoms” include the request by a competent resident, family member of a resident who is not competent, or legally appointed conservator, guardian, or health care agent as defined under section 145C.01, that the facility provide a physical restraint in order to enhance the physical safety of the resident.

If you or a loved one has suffered an injury from neglect or abuse in a nursing home or other care facility that serves the elderly in Minnesota please contact our firm for a free consultation and information regarding the obligations of the facility and your rights as a resident or concerned family member. To contact Attorney Kenneth L. LaBore, directly please send an email to Klabore@guardianlegalservices.net, or call Ken at 612-767-7503.

Nursing Home Residents Should be Free from Physical, Sexual and Pychological Abuse

Written By: Kenneth LaBore | Published On: 7th February 2010 | Category: Physical Abuse, Sexual Abuse | RSS Feed

Any type of abuse in a nursing home environment is wrong and a crime. Under the Minnesota Nursing Homes Residents Bill of Rights, all residents have the right to “be free from harm, including abuse, neglect and financial exploitation.” Physical abuse is the most common type of abuse in nursing homes but sexual abuse also occurs behind closed doors. No one wants to think that this could be happening to a family member. Sexual abuse can be one of the hardest things to admit to and to overcome but it is incredibly important for the welfare of all residents that any act of sexual abuse be reported to a nursing home abuse attorney as soon as possible.

Sexual, Physical and Psychological Abuse of Nursing Home Residents

Sexual abuse usually happens behind closed doors. The criminal will often attack at night and will leave the victim feeling disgusted and ashamed. Furthermore, sexual abuse often comes with mental abuse as well. Name calling, treating the residents in a demeaning or threatening manner and harassment all fall under the category of verbal abuse. In many instances, a resident will be intimated by verbal abuse and will not report the sexual or physical abuse due to fear and shame or a fear that they will not be believed. Resident’s are also fearful that if they cause a problem they will be forced out of the facility and have nowhere to go. Be on the lookout for the following signs and symptoms of sexual abuse in a resident:

Any physical cuts, scratches or bruising
Signs of depression or anxiety
Extreme fear or nervousness, especially when an employee is present
Isolation
Mood changes
Weight loss or weight gain

Sexual abuse can lead to severe emotional complications including low self esteem, suicidal thoughts and depression. It is critical for the welfare of all residents that sexual abuse be stopped immediately.

What to Do if You Suspect Sexual Abuse

If you suspect that your loved one is being abused sexually, then you need to speak to them about it. Often times the resident will feel so ashamed that they will deny anything is wrong. Look for the signs of nursing home sexual and mental abuse, as listed above, and report any suspicious behavior to the authorities. By contacting an ensuring nursing home abuse lawyer, you are ensuring that all residents, both present and future, are protected against this criminal behavior.

In many cases, nursing home sexual abuse occurs because the nursing staff has not been givne a proper background check during the hiring process. Most nursing homes are understaffed with high rates of turnoever thus the nursing home may often have a need to overlook hiring protocols designed to protect the safety of the residents. It is the law that all nursing staff have a criminal background check but this is often waived due to the high demand for staff. In many instances, a nurse with a history of abuse will still be able to find work in nursing homes or other form of elder care facility, despite having been placed on a watch list. Often times sexual abuse of nursing home residents is a preventable form of neglect if the facility management would have the required background checks for new employees as well as enough staff to ensure the residents are well supervised, reducing the liklihood of sexual assaults.