Question: I do custodial and some food service work in a nursing home owned by a company that owns several nursing homes in the state. The company recently told our manager to cut costs, so he reduced food orders and cut work hours for everyone on staff. Some of the residents are looking very thin and one elderly man fainted while being bathed (that had never happened before). My co-workers and I are worried about the residents. Can we report this to anyone? If we do, can the company fire us?
Answer: Yes, you can report these issues. Whether you can be fired for doing so is a slightly more complicated question, but you may have recourse if your employer retaliates against you.
If the nursing home where you work receives Medicare or Medicaid funding, it is covered by federal Nursing Home Reform Act (“NHRA”). (42 U.S.C. § 1396g.) The NHRA establishes a nursing home residents’ “bill of rights,” including the right to be free of abuse, neglect, or mistreatment. Any nursing home that is found in violation of these rights may be placed under state monitoring, ordered to pay monetary penalties, or lose its federal funding. Under the NHRA, each state must set up an agency to deal with complains of violations of the Act. You and your coworkers may want to contact the agency in your state charged with handling violations.
In addition, the federal “Older Americans Act” requires every state to designate an ombudsman to receive and deal with complaints about nursing home issues. One of the functions of a state ombudsman is to mediate issues reported within a nursing home. This may be an avenue for you and your co-workers to pursue that would not jeopardize your jobs, because the ombudsman would step in and work with the nursing home to try to address the issues. You may even be able to talk to the ombudsman anonymously or ask that your names not be used if the nursing home is contacted.
Some states have hotlines or other resources that you and your co-workers could contact to report issues and perhaps maintain your anonymity. For example, the Legal Services of Northern California operates a Senior Legal Hotline to report nursing home issues.
Whether the nursing home is legally barred from terminating you or your coworkers for reporting violations depends upon state law. Some states (such as California) prohibit employers from firing employees for reporting violations to state or federal agencies. For more information about state employment laws protecting whistleblowers, see “Whistleblowing: When Are You Protected?”
You and your coworkers may need to consult with a lawyer experienced in elder law who can walk you through the ombudsman and/or the state NHRA agency reporting processes. And, you may also want to talk to a lawyer experienced in employment law who can tell you what protections you have as whistleblowers.