The laws of the Commonwealth of Pennsylvania  impose upon nursing homes, assisted living or elder care facilities a duty and standard of care to provide to its residents, without limitation:

(1) food, water, and proper nutrition to prevent malnutrition or dehydration;

(2) a safe, sanitary and appropriate living environment;

(3) adequate medical care, including the  acquisition and  correct dispensing of medications;

(4) assistance with personal hygiene and activities of daily living, including adequate treatment, services and assistance to incontinent residents;

(5)  assistive devices, such as wheel chairs and walkers, and appropriate supervision to prevent falls or accidents;

(6) prevention of the resident developing  decubitus ulcers (bed sores, pressure sores), and appropriate medical treatment if such decubitus ulcers occur.

The following briefly describes, and differentiates, a nursing home, assisted living residence, and personal care home:

Nursing Home: is “any premises operated for profit in which nursing care and related medical or other health services are provided, for a period exceeding twenty-four hours, for two or more individuals, who are not relatives of the operator, who are not acutely ill and not in need of hospitalization, but who, because of age, illness, disease, injury, convalescence or physical or mental infirmity need such care.” 62 Pa.C.S. §1001.

Assisted Living Residence: is “any premises in which food, shelter, personal care, assistance or supervision and supplemental health care services are provided for a period exceeding twenty-four hours for four or more adults who are not relatives of the operator and who require assistance or supervision in such matters as dressing, bathing, diet, financial management, evacuation from the residence in the event of an emergency  or medication prescribed for self-administration.”  62 Pa.C.S. §1001.

Personal Care Home: is “any premises in which food, shelter and personal assistance or supervision are provided for a period exceeding twenty-four hours for four or more adults who are not relatives of the operator, who do not require the services in or of a licensed long-term care facility but who do require assistance or supervision in such matters as dressing, bathing, diet, financial management, evacuation of a residence in the event of an emergency or medication prescribed for self administration. 62 Pa.C.S. §1001.

The Pennsylvania Department of Health licenses and regulates diverse types of health care facilities, including nursing homes (35 Pa.C.S. §448.808). The Health Care Facilities Act (HCFA) (35 Pa.C.S. §448.101 et seq.) regulates health care facilities, including nursing homes, and is intended to promote public health by implementing a system to improve the delivery of health care services. The Commonwealth of Pennsylvania has not enacted a bill of rights for nursing home residents, who must look to federal law instead. However, the HCFA requires that nursing homes comply with the minimum federal requirements set forth in the federal Nursing Home Reform Act of 1987, including the resident’s right:

• to be informed in writing of the resident’s rights and the policies and the procedures of the facility;
• to know about services and charges;
• to know about his or her medical condition;
• to participate in the resident’s plan of care, including the right to refuse treatment;
• to choose his or her physician and the right to use a pharmacy chosen by the resident;
• to have his or her personal and medical records treated as confidential;
• to manage his or her personal finances;
• to privacy and to be treated with dignity and respect;
• to use his or her own clothing and possessions;
• to be free from mental, physical and sexual abuse, exploitation, neglect, and involuntary seclusion;
• to be free from restraints;
• to voice a grievance without retaliation;
• not to be transferred or discharged, except for medical reasons, the resident’s welfare or that of another resident, non-payment, or if the nursing home ceases to operate;
• of access to nursing homes.

The Older Adult Protective Services Act is found at 35 Pa.C.S.A. §10225.101 et seq.  It is declared the policy of the Commonwealth of Pennsylvania that older adults who lack the capacity to protect themselves and are at imminent risk of abuse, neglect, exploitation or abandonment shall have access to and be provided with services necessary to protect their health, safety and welfare. This act is liberally construed to assure the availability of protective services to all older adults in need of them.

Such services shall safeguard the rights of incapacitated older adults while protecting them from abuse, neglect, exploitation and abandonment. It is the intent of the General Assembly to provide for the detection and reduction, correction or elimination of abuse, neglect, exploitation and abandonment, and to establish a program of protective services for older adults in need of them. The OAPSA requires a covered facility to obtain a criminal history of all applicants and employees, and prohibits the hiring or retention of an employee who has committed any of the criminal offenses listed in 35 Pa.C.S.A. §10225.503(a).

Nursing homes provide medical and non-medical services. The Unfair Trade Practices and Consumer Protection Law (UTPCPL) (73 Pa.C.S.A. §201-9.2 et seq.)  applies to  the non-medical services provided by nursing homes.

The Commonwealth of Pennsylvania mandates that health care facilities comply with all civil rights laws.  Therefore, health care facilities are subject to, and must comply with, Title VI of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e – 2000e-17) and the Pennsylvania Human Relations Act (43 Pa.C.S.A. §§ 951-962.2)

Certain federal laws designed to stop the abuse of the elderly apply to nursing homes that receive federal funds. These nursing homes must comply with these federal regulations in order to participate as a skilled nursing facility in the Medicare program. These federal regulations cover such matters as Resident Rights (483-10); Admission, Transfer and Discharge rights (483-12); Resident Behavior and Facility Practices (483 – 13); Quality of Life (483 – 15); Resident Assessment (483.20); Quality of Care (483.25); Nursing Services (483.30); Dietary Services (483.35); Physician Services (483.40); Dental Services (483.55); Pharmacy Services (483.60); Infection Control (483.65); Physical Environment (483.70); and Administration (483.75).

The Federal Nursing Home Reform Amendments, 42 U.S.C. §1396r et seq. provides, without limitation, that:

• A nursing home must care for its residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident. 42 U.S.C. 1396r(b)(1)(A)

• A nursing facility must provide services and activities to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident in accordance with a written plan of care which describes the medical, nursing, and psychosocial needs of the resident and how such needs will be met.  42 U.S.C. 1396r(b)(2)(A)

• A nursing facility must conduct a comprehensive, accurate, standardized, reproducible assessment of each resident’s functional capacity, which assessment describes the resident’s capability to perform daily life functions and significant impairments in functional capacity and includes the identification of medical problems. 42 U.S.C. 1396r(b)(3)(A)

• Such an assessment must be conducted–(i) promptly upon (but no later than 14 days after the date of) admission for each individual; (ii) promptly after a significant change in the resident’s physical or mental condition; and (iii) in no case less often than once every 12 months. The nursing facility must examine each resident no less frequently than once every 3 months and, as appropriate, revise the resident’s assessment to assure the continuing accuracy of the assessment. 42 U.S.C. 1396r(b)(3)(C)

• To the extent needed to fulfill all plans of care, a nursing facility must provide (or arrange for the provision of)–

        (i)   nursing and related services and specialized rehabilitative services to  attain or maintain the     highest          practicable physical, mental, and psychosocial well-being of each resident;

       (ii)   medically-related social services to attain or maintain the highest  practicable physical, mental, and psychosocial well-being of each resident;

       (iii)  pharmaceutical services (including procedures that assure the   accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals) to meet the needs of each resident

       (iv)  dietary services that assure that the meals meet the daily nutritional and special dietary needs of  each resident;

        (v)  an on-going program, directed by a qualified professional, of activities designed to meet the interests and the physical, mental, and psychosocial well-being of each resident;

        (vi)  routine dental services (to the extent covered under the State plan) and emergency dental services to meet the needs of each resident; and

        (vii)  treatment and services required by mentally ill and mentally retarded residents not otherwise provided or arranged for (or required to be provided or arranged for) by the State.

The services provided or arranged by the facility must meet professional standards of quality. 42 U.S.C. §1396r(b)(4)(A)

• A nursing facility must provide for having a physician available to furnish necessary medical care in case of emergency; and maintain clinical records on all residents, which records include the plans of care and the residents’ assessments, as well as the results of any pre-admission screening.  42 U.S.C. §1396r(b)(6)(B) & (C)

A nursing facility must protect and promote the rights of each resident, including each of the following rights:

• Free choice: The right to choose a personal attending physician, to be fully informed in advance about care and treatment, to be fully informed in advance of any changes in care or treatment that may affect the resident’s well-being, and (except with respect to a resident adjudged incompetent) to participate in planning care and treatment or changes in care and treatment;

• Free from restraints: The right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for purposes of discipline or convenience and not required to treat the resident’s medical symptoms. Restraints may only be imposed  to ensure the physical safety of the resident or other residents, and  only upon the written order of a physician that specifies the duration and circumstances under which the restraints are to be used (except in emergency circumstances specified by the Secretary until such an order could reasonably be obtained);

• Privacy: The right to privacy with regard to accommodations, medical    treatment, written and telephonic communications, visits, and meetings   of family and of resident groups;

• Confidentiality:   The right to confidentiality of personal and clinical records and to access to current clinical records of the resident upon request by the resident or the resident’s legal representative, within 24 hours (excluding hours occurring during a weekend or holiday) after making such a request;

• Accommodation of needs: The right to reside and receive services with reasonable accommodation of individual needs and preferences, except where the health or safety of the individual or other residents would be endangered, and to receive notice before the room or roommate of the resident in the facility is changed; 

• Grievances:  The right to voice grievances with respect to treatment or care that is (or fails to be) furnished, without discrimination or reprisal for voicing the grievances and the right to prompt efforts by the facility to resolve grievances the resident may have, including those with respect to the behavior of other residents;

• Participation in resident and family groups:  The right of the resident to organize and participate in resident groups in the facility and the right of the resident’s family to meet in the facility with the families of other residents in the facility; 

• Participation in other activities: The right of the resident to participate in social, religious, and community activities that do not interfere with the rights of other residents in the facility;

• Examination of survey results: The right to examine, upon reasonable request, the results of the most recent survey of the facility conducted by the Secretary or a State with respect to the facility and any plan of correction in effect with respect to the facility;

• Refusal of certain transfers: The right to refuse a transfer to another room within the facility, if a purpose of the transfer is to relocate the resident from a portion of the facility that is not a skilled nursing facility to a portion of the facility that is such a skilled nursing facility;

• Other rights:  Any other right established by the Secretary. 42 U.S.C. 1396r(c)

The Commonwealth of Pennsylvania mandates that health care facilities comply with all civil rights laws.  Therefore, health care facilities are subject to, and must comply with, Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000e – 2000e-17) and the Pennsylvania Human Relations Act (43 Pa.C.S.A. §§ 951-962.2)

Nursing homes provide medical and non-medical services. The Unfair Trade Practices and Consumer Protection Law (UTPCPL) (73 Pa.C.S.A. 201-9.2 et seq.) applies to  the non-medical services provided by nursing homes.

Apart from the nursing home, independent living or elder care facility, are there other possible defendants, such as the facility’s management company;  the administrator of the facility; the director of nursing; any nurse responsible for the victim’s care and treatment; other staff members of the facility providing care and supervision of the victim; and the physician providing care to the victim at the facility?

Did the nursing home, independent living or elderly care facility commit a breach of contract by providing a substandard level of care?  Did the facility violate one of the many federal or state statutes or regulations regulating nursing homes, assisted living or elder care facilities, including those enumerated above, giving rise to negligence per se or negligence causes of action?  Does the corporate negligence doctrine applicable to hospitals also apply to establish the nursing home’s direct liability for the harm suffered by its resident?  Is the theory of liability based upon the nursing home, assisted living or elder care facility’s understaffing, negligent hiring and supervision, or failure to provide an on-premises physician?   Is there physical injury to the resident that can support a claim of intentional infliction of emotional distress?  Is the harm suffered by the elderly resident of the nursing home the result of criminal conduct of other residents and/or nursing home employees?  Did the nursing home administer psychotropic medications in violation of accepted professional standards,  without an appropriate psychiatric or neuropsychiatric diagnosis, without systematically trying less restrictive techniques that proved to be ineffective, or without a psychiatrist reviewing  the resident’s current medicine regimen to determine if the dosage and type of medication administered still is appropriate?