Question: Our dad's girlfriend attacked him in the nursing home and now threatens to get him thrown out if he complains. What can we do?
Answer: Although assault is a crime in every state and a nursing home resident may be legally entitled to even greater protection from physical violence under the law than others, your father is in a complicated situation. However, you do have options to assist your dad in addressing this incident.
Your father’s girlfriend may have committed assault, which is a crime under state law and could expose her to possible jail time and a fine if she were convicted. Of course, your father would have to file a police report and that could lead to difficulties in the home because the girlfriend has threatened to retaliate. One way a person charged with assault may retaliate is by filing a police report against their victim, claiming he initiated the altercation and also engaged in assault. If your father’s girlfriend should take this tack, it could indeed lead to problems for your father with the nursing home. However, filing a false police report is also a crime.
Federal law gives nursing home residents a “bill of rights.” These rights, set out in the Nursing Home Reform Act (NHRA”), cover safety, health, medical care, privacy, and freedom to make personal decisions. (42 U.S.C. § 1396g.) If your father’s nursing home receives Medicare or Medicaid funding, it is covered by the NHRA. But the NHRA does not give your father the right to file a private lawsuit against the nursing home for violations of that Act.
Your father has a right not to suffer physical assault in the nursing home and the home has a duty to see to it that assault does not occur. In addition to any state criminal laws that your father’s girlfriend may have violated, certain state and federal laws also give your father the right to live in a home without being physically harmed.
Even if it is not subject to the NHRA, the nursing home may be liable under state law for failure to adequately protect your father, but only if management had reason to know about his girlfriend’s abusive behavior. For example, even though he has not yet reported the assault, does she have a history of such behavior that management is aware of? Was the altercation loud or public enough that staff actually did hear or see it, or should have noticed it? Perhaps other residents have complained about the girlfriend.
In addition, the federal Older Americans Act requires every state to designate an ombudsman to receive and deal with complaints about nursing home issues. You or your father could also contact your state’s ombudsman about the assault.
Your father has a right to privacy under the NHRA, even though he lives in a group housing situation with perhaps some fairly intimate aspects of care. This may complicate your response to the situation you describe. While your concern for your father’s well-being is natural and laudable, unless you are his legal custodian, he has a right to a private relationship with a person of his choosing. He seems to have chosen poorly but if he elects to continue his involvement with this person, there is little you can do about it from a legal standpoint. If, however, his cognitive abilities are compromised (by dementia, medication, Alzheimer’s disease, or otherwise), the nursing home would have a heightened responsibility to monitor him. And, you and your siblings may wish to consider setting up a custodial arrangement.
Elder law is now a specialty recognized by the American Bar Association and several states have elder abuse and nursing home abuse laws. Talk to a lawyer in your area who has experience in elder law to find out how you can address this complicated problem.