Kicking and screaming: The need to document verbal disputes
Elizabeth Leis Newman
If I have a favorite quote from this year's LeadingAge Illinois conference, it's from Matthew Murer, an attorney at Polsinelli, who said it's OK for long-term care providers to turn away prospective residents who seem like a bad fit.
"You can discriminate against crazy all day long," Murer said. "You want to provide the best community that you can."
I was reminded of that quote this week when I read a story about a woman who sued because she was discharged from an Illinois nursing home. After living at Alden Long Grove Rehabilitation and Health Care Center in Long Grove for five years, a resident “had a verbal dispute with a nurse and a verbal dispute with another resident,” according to court documents.
In other words, it sounds like she became angry, and, who knows, could have acted a little crazy by some person's standards. Maybe some of us have been there. Maybe you're more the type of person who wants to hide under a desk if people start yelling. (Personally, I have fallen into both categories.) The nursing home signed an Emergency Notice of Involuntary Transfer or Discharge, stating that the resident posed a danger to individuals at Alden. She was transferred to Alexian Brothers Behavioral Health Hospital for a few weeks, and then she was sent to another nursing home.
To be clear, Murer was talking about foregoing letting certain seniors become residents in a facility, not kicking them out. But it does remind us once again of what a facility owes to a person with behavioral issues, as well as the other residents and the payer. In this case, the payer was Illinois since the resident was on Medicaid.
She sued because she said the Nursing Home Reform Amendment says Medicaid-certified facilities can't discharge the resident except under certain specific circumstances. It's unclear what these verbal disputes were about, but the complainant argued the nursing home did not have documentation reflecting their assertion that she was endangering other residents, nor did it offer her counseling after the emergency had passed, she says.
To a certain extent, she may have lost because she adopted a “go big or go home” mentality, which is that she sued in federal court rather than pursuing an administrative hearing in state court. She “failed to avail herself of this opportunity,” of an administrative hearing, wrote Judge Thomas M. Durkin. Also, the system is not set up for individuals to sue nursing homes over involuntary discharge.
“Congress's provision of an administrative remedial process for nursing facility residents, and Congress's decision to reserve that process to the state courts in the context of broad enforcement powers entrusted to the federal and state governments, is a strong indication that Congress did not intend for individual nursing facility residents to have a private right of action under the NHRA,” he wrote.
On the surface, this is a victory for nursing homes in Illinois and a reflection that staff probably made a justifiable decision based on evaluating the safety of other residents. But it's worth remembering that the resident had lived at Alden for five years, and likely considered that her home. The fact that she sued may reflect deep distress at being moved out, and we can feel sympathy for her while simultaneously thinking the facility made the right call.
And of course, no one really knows whether she was verbally abusive one time to the point of being a danger, or was legitimately upset and raised her voice, or was as regularly as mean and crazy as a bag of feral cats. Maybe there's a large file of the resident's past actions in the nursing home files. But one would assume that would have been entered into court records, and that part of her case hinged on a lack of documentation.
So while her case was dismissed with prejudice, it's worth using it as an opportunity to remind staff that, when it comes to hostile verbal interactions, it's your word against theirs. Accept no excuses when it comes to failure to document any type of alleged abuse.
Elizabeth Newman is Senior Editor at McKnight's Long-Term Care News. Follow her @TigerELN.