Legal Rights and Protections in Nursing Home Abuse Cases in NYC
A 2021 study estimated that roughly 11.4% of older adults in New York State will experience some form of abuse over a ten-year period.[1] That jarring statistic translates to more than 360,000 older people suffering this type of abuse over that ten-year period.[2] New York State has made great efforts to reduce these numbers, but, sadly, New York State’s incidence rate of the abuse of older people is higher than the national average of 9.5%.[3]
Elderly people are some of the most vulnerable people in New York and in our society. It is imperative that they be treated with dignity and respect, and it anyone who abuses older people must be held accountable under both federal and New York law.
Recognizing this, New York Governor Kathy Hochul signed legislation requiring nursing homes to publicly display their most recent ratings for their health inspections, staffing, and quality measures as determined by the federal Centers for Medicare and Medicaid Services (the “CMS”) rating system.[4] These star ratings will help consumers find quality nursing homes that can best meet their needs, but New York can and must do more to protect these vulnerable people.
If you or an older person you care about have been the victim of nursing home abuse then reach out to our nursing home abuse attorneys at Dansker & Aspromonte to schedule your free consultation. Our attorneys will fight for you to ensure that you receive the dignity, respect, and ultimately, the compensation you deserve. Call us today at (516) 774-3988, or contact us through our online portal, which is linked here.
Types of Nursing Home Abuse
Nursing home abuse is a common problem that takes many forms. Defined broadly, nursing home abuse is any action or lack of appropriate actions that cause harm, risk causing harm, or distress a person who is sixty-years (60) of age or older when that action or inaction (a) occurs in a relationship where there is an expectation of trust or (b) occurs when the action is directed towards the older person because of the person’s age.[5]
Each of the most common forms of nursing home abuse will be addressed below.
Physical Abuse
While it seems unimaginable, there are those who would inflict physical pain on the elderly. The term physical abuse pertains to any intentional application of physical force to an elderly person’s body that results in bodily injury, pain, or any other type of impairment.[6] Physical abuse is a common form of nursing home abuse, as roughly 9.3% of all nursing home abuse victims are the victims of physical abuse.[7]
The typical signs of physical abuse include:
- unexplained bruises, cuts, burns, or scars;
- weight loss that cannot be explained;
- the older person have a dismissive attitude or making dismissive statements regarding his or her injuries;
- the older person having unreasonable fears or suspicions regarding seemingly innocuous things; and
- sudden, unexplained changes in behavior.[8]
Neglect
Another very common form of abuse is neglect. Neglect differs from physical, financial, and emotional abuse in that neglect occurs when someone fails to fulfill his or her duties to the older person for whose care he or she is responsible.[9] Neglect can be unintentional, but the term also encompasses an intentional failure to provide care to the older person.[10]
Instances of neglect by a caretaker will commonly come in two forms[11]:
- Active Neglect: This form of neglect is intentional. It is the withholding of items necessary for the older person’s daily life—including food, exercise, medicine, personal hygiene, companionship.
- Passive Neglect: The second form of neglect is unintentional. Common forms of passive neglect include leaving the older person alone for long periods of time, isolating the person, or just forgetting about or ignoring them altogether.
Though this list is not exclusive, these are a few signs of neglect:
- unexplained bruises or cuts indicating that the older person has fallen;
- a lack of basic hygiene;
- unexplained weight loss in the older person due to a lack of food or water;
- dirty or inappropriate clothing for the weather or conditions;
- untreated bedsores; or
- unpaid bills despite having adequate financial resources.
Financial Exploitation
Somewhere around 13.8% of all nursing home abuse cases will involve some kind of financial abuse.[12] In this context, financial abuse is defined broadly because it can appear quite complex, but at bottom, financial abuse is the unauthorized use or theft of the older person’s funds, property, or other resources.[13]
The financial exploitation of an older person can be difficult to detect because of the myriad complexities in the ways that it can happen. However, there will be signs of financial exploitation, including:
- large withdrawals from bank accounts;
- unusual ATM activity; and
- unpaid bills or other signs of insufficient care.
Emotional Abuse
Emotional abuse refers to incidents of abuse in which the abuser intentionally inflects mental or emotional anguish by threatening, humiliating, or intimidating the older person.[14] A few concrete examples of emotional abuse include:
- isolating the older person from family and friends;
- treating the older person like a child; or
- intentionally interrupting the older person’s daily activities.[15]
Approximately 64.2% of all reported incidents of nursing home abuse are incidents of emotional or psychological abuse, and it is the most commonly reported form of nursing home abuse.[16]
Legal Rights and Protections
Thankfully, both New York State and the federal government have taken steps to address the scourge of nursing home abuse. These protective measures are addressed below.
New York Public Health Laws
The New York Nursing Home Bill of Rights
New York has also adopted a “Bill of Rights” protecting nursing home residents. This Bill of Rights must be posted in a public place in every nursing home or facility providing health-related services.[17] Under the Bill of Rights, nursing home residents in New York State have the right to:
- dignity, respect, and a comfortable living environment;
- quality care and treatment without discrimination;
- freedom of choice to make their own decisions;
- written notice and information regarding the services and fees they will incur from a nursing home;
- security in their money and property;
- appeal any transfer or discharge from a nursing home with the New York State Department of Health;
- privacy in their communications;
- choose their schedule, what activities they do, and any other preferences that are important to them;
- receive visitors at the time of their choosing;
- a navigable, responsive complaint procedure when the nursing home fails in some aspect;
- be free from all verbal, sexual, mental, and physical abuse—including restraints; and
- exercise all of these rights without the fear of retribution.[18]
Minimum Staffing and Direct Residential Care Spending Requirements
Beyond the Bill of Rights, New York’s Public Health Laws also dictate how nursing homes spend their revenue.[19] New York nursing homes are required to spend—at a minimum—seventy-percent (70%) of their revenue on direct resident care.[20] Moreso, forty-percent (40%) of their revenue must be spent on resident-facing staff—though this 40% is included as part of the 70% that must be spent on direct resident care.[21] The New York Public Health Laws intend to protect residents’ safety by mandating investments in both the facility and in adequate staffing. New York nursing homes that fail to comply with the New York Public Health Laws are subject to financial penalties of up to $2,000 per day for each day in a quarter that a facility fails to comply with these minimum nursing staff requirements.[22]
Filing Suit Against Nursing Home Facilities
New York explicitly authorizes the filing of a lawsuit whenever a nursing home resident’s rights are violated by a nursing home.[23] In the context of filing a lawsuit, a nursing home resident’s rights are violated whenever a nursing home facility fails to comply with:
- the terms of a contract;
- any New York State statute, code, rule, or regulation; or
- any applicable federal statute, code, rule, or regulation.[24]
A violation of those rights is actionable in a lawsuit if both (a) the right or benefit violated was created for the benefit of the nursing home resident and (b) the nursing home resident has suffered an injury.[25] The “injury” can be physical or emotional harm, financial loss, or even death—reflecting the realities of nursing home abuse and its multi-faceted harms.[26]
The Elder Justice Act
Passed in 2009, the Elder Justice Act is an act of congress established by Section 6703(b) of the Patient Protection and Affordable Care Act of 2010 (the “ACA”).[27] The ACA established new enhanced reporting requirements for owners, operators, employees, managers, agents, or contractors for any “long-term care facility.”[28]
The phrase “long-term care facility” means a residential care provider that arranges for or directly provides long-term care.[29] The ACA goes on to define the phrase “long-term care” to mean supportive and health services for people who need assistance because they have a “loss of capacity” for self-care due to illness, disability, or vulnerability.[30] But the ACA goes on, defining “loss of capacity” expansively to mean an inability to engage in 1 or more activities of daily living, which include the inability to eat, dress oneself, bathe oneself, or manage one’s own financial affairs.[31] These broad definitions massively expands the number of people who are obligated to report nursing home abuse under the law.
The Elder Justice Act doesn’t just expand the number of mandatory reporters in the nursing home context: it specifies what they must report, to whom they must report it, and the time frame in which they must report it.[32] Under the Elder Justice Act:
- mandatory reporters must report “any reasonable suspicion of a crime” against any person who resides in or receives care from their long-term care facility;
- mandatory reporters must report their reasonable suspicion to at least one law enforcement entity in their jurisdiction;
- they must make their report no later than 24 hours after forming their reasonable suspicion if the resident is not injured, and
- the mandatory reporter must report their reasonable suspicion of a crime within two (2) hours if the older person suffered a serious bodily injury, though these timelines may be subject to exceptions under certain circumstances.[33]
Reporting Nursing Home Abuse in New York
New York State has multiple agencies to which nursing home abuse can be reported, including:
- New York State Adult Protective Services (“APS”): APS intakes, investigates, and assesses referrals of abuse, neglect, and financial exploitation of adults who cannot protect themselves. APS is for cases in which the older person does not have someone who is willing and able to assist responsibly.
- New York State Department of Health (“DOH”): DOH specifically addresses complaints about nursing homes, assisted living facilities, and adult care facilities licensed by the state. A complaint against a nursing home can be filed by calling their hotline: 1-888-201-4563. Alternatively, a complaint can be filed on DOH’s website, which you will find linked here.
- New York State Department of Financial Services (“DFS”): Complaints of exploitation, fraud, scams, or other unauthorized transactions can be reported to the New York Department of Financial Services at this link.
Conclusion
Many nursing homes and residential-care facilities are well-intentioned, high-quality facilities that work hard to provide a good life to their residents, but sadly, there are facilities that place profits over people and fail to live up to their moral and legal obligations. Facilities like these propagate elder abuse in its myriad forms, including financial, physical, emotional, and neglect. Both federal and New York law aim to end elder abuse by requiring mandatory reporting, guaranteeing residents’ rights, and commanding staffing and facility-investments. Remember: you can still make a report even if it is not your obligation to do so under the law, and you absolutely should where warranted.
There has been great progress on nursing home abuse issues, but there are still those who would victimize the most vulnerable among us.
If you are in need of an attorney to enforce the rights of an older person in your life and hold a nursing home accountable for their injuries then reach out to Dansker & Aspromonte. Understanding your loved one’s rights and legal options is paramount in stopping the abuse and bringing the abusers to justice. Our nursing home abuse attorneys are available for an initial consultation at no cost to you. Schedule your free consultation with our attorneys by calling us at (516) 774-3988 or by reaching out to us through our online portal, which is linked here.
[1] David Burnes, et al., “Estimated Incidence and Factors Associated With Risk of Elder Mistreatment in New York State,” (Apr. 18, 2022), https://pmc.ncbi.nlm.nih.gov/articles/PMC9014652/.
[2] David Burnes, et al., “Estimated Incidence and Factors Associated With Risk of Elder Mistreatment in New York State,” (Apr. 18, 2022), https://pmc.ncbi.nlm.nih.gov/articles/PMC9014652/.
[3] David Burnes, et al., “Estimated Incidence and Factors Associated With Risk of Elder Mistreatment in New York State,” (Apr. 18, 2022), https://pmc.ncbi.nlm.nih.gov/articles/PMC9014652/.
[4] LeadingAge New York, “Governor Signs Law Enacting Additional Nursing Home Posting Requirements” (Oct. 1, 2024), https://www.leadingageny.org/advocacy/main/government-politics-and-advocacy-blog/governor-signs-law-enacting-additional-nursing-home-posting-requirements/.
[5] New York State Bar Association, “Elder Abuse: An FAQ for Attorneys” (accessed 2/12/2025), https://nysba.org/app/uploads/2020/02/elderabuseFAQ-2.pdf.
[6] N.Y. Elder Law Practice § 1:6 (2024 ed.).
[7] Yongjie Yon, et al., The prevalence of elder abuse in institutional settings: a systematic review and meta-analysis, Eur. J. Pub. Health (Feb. 2019), https://pubmed.ncbi.nlm.nih.gov/29878101/.
[8] “Elder Abuse: How to spot warning signs, get help, and report mistreatment”, American Psychological Association (Updated July 8, 2024), https://www.apa.org/topics/aging-older-adults/elder-abuse.
[9] N.Y. Elder Law Practice § 1:6 (2024 ed.).
[10] N.Y. Elder Law Practice § 1:6 (2024 ed.).
[11] N.Y. Elder Law Practice § 1:6 (2024 ed.).
[12] Yongjie Yon, et al., The prevalence of elder abuse in institutional settings: a systematic review and meta-analysis, Eur. J. Pub. Health (Feb. 2019), https://pubmed.ncbi.nlm.nih.gov/29878101/.
[13] N.Y. Elder Law Practice § 1:6 (2024 ed.).
[14] N.Y. Elder Law Practice § 1:6 (2024 ed.).
[15] N.Y. Elder Law Practice § 1:6 (2024 ed.).
[16] Yongjie Yon, et al., The prevalence of elder abuse in institutional settings: a systematic review and meta-analysis, Eur. J. Pub. Health (Feb. 2019), https://pubmed.ncbi.nlm.nih.gov/29878101/.
[17] N.Y. Pub. Health Law § 2803-c (McKinnney).
[18] N.Y. Pub. Health Laws § 2803-c (McKinney); New York Department of Health, “Your Rights as a Nursing Home Resident in New York State” (accessed February 7, 2025), https://www.health.ny.gov/facilities/nursing/rights/.
[19] N.Y. Pub. Health Laws § 2828 (McKinney).
[20] N.Y. Pub. Health Laws § 2828 (McKinney).
[21] N.Y. Pub. Health Laws § 2828 (McKinney).
[22] New York State Department of Health, “Nursing Home Minimum Staffing and Direct Resident Care Spending” (accessed February 7, 2025), https://www.health.ny.gov/facilities/nursing/minimum_staffing/.
[23] N.Y. Pub. Health Laws § 2801-d (McKinnney).
[24] N.Y. Pub. Health Laws § 2801-d (McKinnney).
[25] N.Y. Pub. Health Laws § 2801-d (McKinnney).
[26] N.Y. Pub. Health Laws § 2801-d (McKinnney).
[27] 42 USCA § 1397j. See also Elder Justice Act Under 6703(B)(3) of the Patient Protection and Affordable Care Act of 2010 (accessed Feb. 6, 2025), https://opwdd.ny.gov/system/files/documents/2020/01/eja-attachment.pdf
[28] 42 USCA § 1320b-25.
[29] 42 USCA § 1397j.
[30] 42 USCA § 1397j.
[31] 42 USCA § 1397j.
[32] 42 USCA § 1320b-25.
[33] 42 USCA § 1320b-25.