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E-Newsletter of July 30, 2013 | Vol. 6, No. 31



Federal Regulations Designed to Protect Nursing Home Residents from Abuse and Neglect 

Despite the present trend for people who need long term care to get that care in their communities, there will always be a need for nursing homes for those who need or want to be cared for in a facility setting that is capable of providing professional nursing services 24 hours a day.   In fact, the demand for nursing home services will likely continue to increase with the aging of the baby-boomer generation.  The population of persons over the age of 85 has increased significantly, and population projections by the US Census Bureau anticipate the over age 65 population to increase by 40% between 2010 and 2030.  Projections indicate that the percentage of people in need of nursing home care will increase by up to 25% in the coming decades.

According to the best available estimates, between 1 and 2 million Americans age 65 or older have been injured, exploited, or otherwise mistreated by someone on whom they depended for care or protection.[i]   Estimates of the frequency of elder abuse range from 2% to 10% based on various sampling, survey methods, and case definitions.[ii]   It is estimated that for every one case of elder abuse, neglect, exploitation, or self-neglect reported to authorities, about five more go unreported.[iii]

Nursing homes are at the higher needs end of the spectrum and are often the focus of elder neglect due to the number of residents and the increased complexity of the their care needs.  Many of the cases of nursing home neglect would be preventable with adequate numbers of well trained staff. 
Unlike many other types of injury claims, there are standards and regulations, both state and federal for most care provided in a nursing home, which apply to all facilities which accept Medicare and Medicaid residents. Pursuant to Minnesota Rule 4658.0015 a nursing home must “operate and provide services in compliance with all applicable federal, state, and local laws, regulations, and codes, and with accepted professional standards and principles that apply to professionals providing services in a nursing home.”

Most cases are a result of some combination of short staffing, poor training, lack of medical supplies and equipment and a failure to follow care plans and to regularly assess residents especially when there has been a change of condition, including medical conditions and accidents/incidents.  The failure to respond to changes in condition in a timely manner leads to many serious injuries such as amputations and often times death.   Injuries and death due to the lack of proper supervision and assessment are truly preventable and the type of situations that could be improved with a movement towards holding facilities accountable.  

The nursing home must conduct an initial comprehensive and accurate assessment of each resident's functional capacity.  Minnesota Rule 4658.0405, Subpart 1, requires that “a nursing home must develop a comprehensive plan of care for each resident within seven days after the completion of the comprehensive resident assessment as defined in part 4658.0400”. The comprehensive plan of care must be developed by an interdisciplinary team that includes the attending physician, a registered nurse with responsibility for the resident, and other appropriate staff in disciplines as determined by the resident's needs, and, to the extent practicable, with the participation of the resident, their legal guardian or chosen representative.

It is important that there is an established baseline of the medical condition of the resident upon admission to the facility; this is generally completed in the admission process where the doctor’s orders for the resident as well as the assessments of the relevant risks and needs are compiled into the resident’s care plan.   The care plan can then be compared and contrasted with the care and treatment as actually provided and documented in the medical records/chart of the resident.

Under the federal regulations, the nursing home must:

  • Have sufficient nursing staff. (42 CFR §483.30)
  • Conduct initially a comprehensive and accurate assessment of each resident's functional capacity. (42 CFR §483.20)
  • Develop a comprehensive care plan for each resident. (42 CFR §483.20)
  • Prevent the deterioration of a resident's ability to bathe, dress, groom, transfer and ambulate, toilet, eat, and to communicate. (42 CFR §483.25)
  • Provide, if a resident is unable to carry out activities of daily living, the necessary services to maintain good nutrition, grooming, and personal oral hygiene. (42 CFR §483.25)
  • Ensure that residents receive proper treatment and assistive devices to maintain vision and hearing abilities. (42 CFR §483.25)
  • Ensure that residents do not develop pressure sores and, if a resident has pressure sores, provide the necessary treatment and services to promote healing, prevent infection, and prevent new sores from developing. (42 CFR §483.25)
  • Provide appropriate treatment and services to incontinent residents to restore as much normal bladder functioning as possible. (42 CFR §483.25)
  • Ensure that the resident receives adequate supervision and assistive devices to prevent accidents. (42 CFR §483.25)
  • Maintain acceptable parameters of nutritional status. (42 CFR §483.25)
  • Provide each resident with sufficient fluid intake to maintain proper hydration and health. (42 CFR §483.25)
  • Ensure that residents are free of any significant medication errors. (42 CFR §483.25)
  • Promote each resident's quality of life. (42 CFR §483.15)
  • Maintain dignity and respect of each resident. (42 CFR §483.15)
  • Ensure that the resident has the right to choose activities, schedules, and health care. (42 CFR §483.40)
  • Provide pharmaceutical services to meet the needs of each resident. (42 CFR §483.60)
  • Be administered in a manner that enables it [the nursing home] to use its resources effectively and efficiently. (42 CFR §483.75)
  • Maintain accurate, complete, and easily accessible clinical records on each resident. (42 CFR §483.75)

One of the best ways to check the past history of federal care deficiencies for a facility is to check the Medicare / Medicare CMS website called  Nursing Home Compare

Information about past quality of care and other caregiver complaints are available at the MDH website for the Office of Health Facility Complaints
 Department of Health complaints can be filed at:
Federal nursing home surveys are available at 
i (Elder Mistreatment: Abuse, Neglect and Exploitation in an Aging America. 2003.  Washington, DC: National Research Council Panel to Review Risk and Prevalence of Elder Abuse and Neglect.)

ii (Lachs, Mark S., and Karl Pillemer. October 2004.  “Elder Abuse” The Lancet, Vol. 364: 1192-1263.)
iii (National Elder Abuse Incidence Study. 1998.  Washington, DC: National Center on Elder Abuse at American Public Human Services Association.)

Submitted by Kenneth LaBore



Log on to to view the most recent elder law pro bono entries:

Remember to keep track of your pro bono hours to report with the MSBA’s North Star Lawyer Program. You may also claim 1 hour of CLE credit for every 6 hours of pro bono legal representation provided in a case that has been referred to you by an approved legal services provider or by a MN Judicial Branch program. Visit the Minnesota Board of CLE for more information.      

Submitted by Adam Rohne, Esq.



Looking for resources you can use in advocating for seniors?  Every week, the Advocacy Committee will be bringing you tips, links and other information you can use to pursue justice for seniors, with a particular emphasis on litigation and administrative appeals.  This week’s tip is brought to you by the Committee’s Co-Chair, David Rephan.   

The next time your client has a dispute involving  a smaller amount of money, consider filing in conciliation court instead of state district court.  The filing fee is about $70 (instead of $322 in state district court).  As of August 1, 2012, the jurisdictional limit for conciliation court is $10,000 (or $4,000 if the claim involves a consumer credit transaction).  On August 1, 2014 the $10,000 amount becomes $15,000. 

Submitted by Susanne "Anne" Starr Goodman



Elder Law News


Feds Tell DHS to Fix Medicaid Rates or Face Penalties | KSTP
GOP should push long-term care debate | Star Tribune
Power-of-attorney law addresses 'rampant' abuse | Star Tribune
At World Youth Day, pope honors the elderly | Pioneer Press
Submitted by Joel Smith, Esq.

Elder Law Cases

The following decision was released by the Minnesota Court of Appeals on July 29, 2013:

In re the Guardianship of: Jeffers J. Tschumy, Ward.
Hennepin County District Court, Hon. Jay Quam. 

Unless otherwise limited in the guardianship order, a guardian's power to consent to necessary medical or other professional care for a ward under Minn. Stat. § 524.5-313(c)(4) (2012) includes the power to authorize disconnection of a permanently unconscious ward's life-support systems without seeking an order from the district court.
Reversed.  Judge Natalie E. Hudson.
The decision is available here.

Submitted by Andrea Palumbo, Esq.


Elder Law Statutes, Regulations, and Bulletins

DHS announced the following in July 2013; complete Bulletins can be found at the links below:
DHS Announces New Procedure Codes for Caregiver Services for Families of Older Adults
Update on the Federal Poverty Guidelines and Suggested Social Services Fee Schedule
DHS Adjusts Nursing Home Property Limitations and Dollar Thresholds for 2013
Submitted by Marit Peterson, Esq.


Upcoming Events and CLE Programs

There are no upcoming events or CLEs to report this week.


Elder Law Section Activities


GOVERNING COUNCIL: The next meeting of the Elder Law Section Governing Council will be on Friday, August 23, 2013 at 3:30 pm. Please be reminded that the meeting location is: Estate & Elder Law Services (formerly MAO Legal Services), Monroe Village, 1900 Central Avenue NE, Minneapolis, Minnesota 55418. The meeting takes place in the buildings conference room. There are a few parking spaces behind the building and lots of street parking. People should walk to the back of the building and come to the back door which faces directly into the meeting room.

For further information, please contact David Rephan, Chair,


Elder Law Website


DON'T FORGET THAT THE ELDER LAW WEBSITE IS A GREAT RESOURCE. Here’s what you can find on the Website:  Links to the DHS Health Care Programs Manual, the DHS Bulletin on treatment of uncompensated transfers, the Minnesota Bankers Association Compliance Bulletin on Powers of Attorney, legislative summary; Practice Links to organizations such as NAELA, ABA Commission on Law and Aging, Links to Federal and State Government Agencies, Statutes, and Regulations; Meeting Notices, Listings of Officers and Council Members, Section Bylaws, and more.

Go to the Section Website Header

[i] (Elder Mistreatment: Abuse, Neglect and Exploitation in an Aging America. 2003.  Washington, DC: National Research Council Panel to Review Risk and Prevalence of Elder Abuse and Neglect.)
[ii] (Lachs, Mark S., and Karl Pillemer. October 2004.  “Elder Abuse” The Lancet, Vol. 364: 1192-1263.)
[iii] (National Elder Abuse Incidence Study. 1998.  Washington, DC: National Center on Elder Abuse at American Public Human Services Association.)