It is unknown how many of our vulnerable elderly fall victim to neglect or abuse each year since such actions are easily hidden from view and underreported. In fact, according to the National Center for Elder Abuse (NCEA), 84 percent of abusive situations involving older adults go unreported or unrecognized.
Traditionally, cases of nursing home abuse and neglect have been handled as administrative or civil matters. For instance, Ohio state regulators may take action against a nursing facility providing substandard care. Individual residents, or their family members, can also file civil lawsuits seeking monetary damages.
But there are cases where criminal prosecutors may step in and take action. Bloomberg Law recently noted the U.S. Department of Justice “is making a push this fall to identify criminal charges that can be brought alongside civil actions against nursing homes and staff accused of abusing and defrauding elderly patients.” For example, using the Postal Service or online services to make false representations in connection with nursing home care can be prosecuted as wire fraud under federal law.
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The Justice Department’s push is part of its Elder Justice Initiative, which launched last year. As Bloomberg Law explained, the Department’s Civil Division has traditionally relied upon the False Claims Act (FCA) to go after nursing homes that bill the government’s Medicaid and Medicare programs for non-existent or substandard services. But at U.S. Associate Attorney General Toni Bacon told Bloomberg, in “appropriate cases,” the Civil Division would refer a matter for “a parallel criminal prosecution.”
What does that look like in practice? To give just one recent example, on September 27, a federal judge in Tucson, Arizona, sentenced a former nursing home caregiver to 18 months in prison for “defrauding” a 92-year-old resident. The defendant admitted her guilt in open court, explaining that she “gained access to the victim’s banking information” and “wrote checks for her own personal benefit out of the victim’s account.”
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Not surprisingly, the nursing home industry is publicly balking at the Justice Department’s move to aggressively push criminal charges in neglect and abuse cases. An official with the American Health Care Association, the lobbying arm for nursing homes, told McKnight’s Long-Term Care News, that “[c]riminalizing poor quality is not the answer,” and that cases of abuse and neglect are “rare.”
CONTACT THE CLEVELAND NURSING HOME ABUSE & NEGLECT ATTORNEYS AT TITTLE & PERLMUTTER TODAY
While the Justice Department’s new emphasis on criminal prosecution of nursing home abuse and neglect is welcome, it is important to understand the limitations of such actions. In criminal law, the prosecution needs to prove a defendant’s guilt “beyond a reasonable doubt.” This is a substantially higher standard than civil lawsuits involving abuse and neglect, where the burden of proof is typically a “preponderance of the evidence.”
And although successful criminal prosecutions may yield some restitution for the individual victims, the primary objective of these cases is to punish wrongdoing. That is to say, if victims of nursing home abuse and neglect wish to seek compensation for their injuries, they should still take the initiative and take appropriate civil action on their own.
If you need advice from a qualified Cleveland nursing home abuse and neglect lawyer on how to bring such a civil action, contact Tittle & Perlmutter today at (216) 308-1522.