Disabilities

Q. I believe my adult mentally challenged brother is not receiving proper care in the residential facility and his doctor records should support this. I tried reporting things the direct way, but there was no improvement. I want to put a camera with a recording device in his room to document the problem. What are my options?
A. I will answer this question in several ways. First, involving the doctor via a written order for certain care or his/her records reflecting the concerns and likely causes is a good idea. You can call to schedule a care planning meeting with the facility case manager. If access is still restricted do it via Zoom.
I often hear from family members that they fear retaliation such as the facility finding a way to transfer or discharge the individual if they complain too much. Retaliation is prohibited by law. Just document your efforts including dates, times, persons spoken to and what you understood. Follow-up letters are good ideas to clarify expectations. Please be civil.
Second, in the early 1970s the Long-Term Care Ombudsman Program (LTCOP) was created by the federal government. In 1978 each state became required as part of the Older Americans Act to create an ombudsman program. Specific duties were outlined in 1992 amendments to the Act. Additionally, the Nursing Home Reform Act of 1987 established regulations such as residents have the right to be free of physical or mental abuse, corporal punishment, involuntary seclusion, and to be free of physical and chemical restraints imposed for discipline or convenience. The resident’s Bill of Rights is easily obtainable from the facility.
An ombudsman acts as an advocate for those in nursing homes, assisted living and long-term care facilities. They investigate complaints. In South Carolina, the LTCOP program is part of the SC Department of Aging and they have regional offices, including one in our geographic area. Annually they investigate about 8000 complaints. All matters are kept confidential unless granted permission. Complaints typically involve accidents or improper restraints, gross neglect, dignity and respect violations related to staff issues. Poor quality food, slow response to calls and medical/dental concerns are also raised. You can call 1-800-868-9095 to report your concerns.
I have the utmost respect for the ombudsmen (mostly women) I have had the pleasure to work with over the years. I have found them to be knowledgeable, dedicated, diligent and caring.
To reduce abuse in long-term care facilities, states began to enact legislation to allow electronic devices in resident rooms. To date six states have issued rules to authorize cameras and sound recording devices, sometimes called granny cams. South Carolina is not among them. Remember your loved one dresses and undresses in such settings. The aged and disabled have dignity and privacy rights which should be respected even in guardianships. They also have the right to private conversations.
Most attorneys that deal with the elderly and disabled support the use of electronic devices to curb facility violations, especially in the light of Covid-19 restrictions such that families have been unable to visit and oversee daily care. That being said the staff in residential settings have been stretched to capacity this past year. I would think it’s been hard to fill caregiver job vacancies in the current Covid situation. Focus on the facts and be kind when talking with the caregiver staff. The job is no easier for them than it was for you just because they are being paid a modest salary.
There is not a lot of case law, because rarely is there time or money to pursue court action. Nevertheless, you might hire an attorney to step into this kind of situation as an advocate directly with the facility. If a guardian ad litem is still involved as part of a family or probate court proceeding, he or she may be able to investigate and push compliance with your brother’s medical needs.
DISCLAIMER The information given in this article is of a general nature and does not create an attorney-client relationship. You should always consult with an attorney one-on-one regarding the specific facts of your situation. March 2021

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