By Eric Carlson, NSCLC Attorney

I write a legal treatise called “Long-Term Care Advocacy” that includes the statement that “[o]n both the federal and state levels, enforcement of nursing home law leaves much to be desired.”  Is there support for that statement?  Oh yes.  The statement’s footnote cites to so many reports that the footnote alone takes up half of one page, the entirety of the following page, and a good-sized chunk of a third page.  And these days, when I prepare the book’s annual update, I don’t even bother adding many of the new reports to the footnote, since the new reports are saying essentially the same thing that the other reports have said over the years.

So, after a steady stream of reports, newspaper investigations and television exposes, why are so many nursing homes so bad, and why are the majority of nursing homes so predictably mediocre?  Not to blame the victim, but a significant part of the problem lies with the general public’s unfamiliarity with long-term care generally and nursing homes specifically.  The occasional intervention by an inspector or reporter cannot substitute for polite but insistent advocacy by a resident or a resident’s family member.

Let’s call advocacy by a more derogatory but descriptive term – complaining.  Nursing home residents and their families should complain more.  They should complain when the resident is required to wake up at a particular time and go to bed before she wants to.  They should complain when family members are forced to leave at the end of posted visiting hours.  They should complain when the nursing home gives less attention to residents whose care is reimbursed through the Medicaid program.

In each of these situations, the resident would be right to complain, because the nursing home would be violating the federal Nursing Home Reform Law.  As detailed in our consumer guide, 20 Common Nursing Home Problems – and How to Resolve Them, many nursing homes follow standard operating procedures that violate the law.  Contrary to the claims of many nursing homes, residents in fact have the right to set their own schedules, within reason.  Family members can visit at any time, 24/7.  And nursing homes cannot discriminate against Medicaid-eligible residents.

I ordinarily don’t speak of residents “complaining” to a nursing home – “complain” undoubtedly has a negative connotation.  But I’m embracing the word for this posting in order to emphasize the importance of conflict in the relationship between the nursing home and (on the other side) the resident and the resident’s family.

Currently, residents and their family members are much too timid.  Hundreds of times – maybe thousands – I’ve been told that a resident or family member is afraid to raise a problem with a nursing home.  The resident or family member is scared of retaliation, or is just intimidated by the situation.  This timidity is why nursing homes are able to maintain illegal operating procedures.  Consumers often are unwilling to speak up and, without consumer pressure, nursing homes cut corners and skimp on care.

Let me be clear here – I understand that it’s much easier for me to complain than it is for a resident or family member to do the same.  I don’t live in a nursing home, and I’m not dependent on nursing home staff members.  But that fact doesn’t change my conclusion, based on more than 16 years of representing long-term care residents, that complaining is a plus for the resident.

Think of it from the viewpoint of a nurse or nurse aide.  Who will get better care, the resident who is afraid and says nothing, or the resident who complains -- intelligently and appropriately politely -- when care is inadequate.  My money is on the complaining resident, based on what I have seen.  I have represented many residents in bitter disputes and, after we’ve won, the residents have received improved care.  The nursing home has learned that it must treat that resident with respect, since he has demonstrated that he’s willing to speak up.

People have told me that the Baby Boomer generation will change the balance of power in nursing homes because the Boomers will demand more and defer less.  Maybe.  But there’s no need to wait that long.  Today’s nursing home residents are well advised to demand more themselves – they already are entitled, legally and morally, to individualized and humane nursing home care.