Practical Advice To Help Defeat Frivolous Defenses
By Deborah R. Gough, Esq.

What do you do when a nursing home tries to argue that it is not a nursing home?

That may seem like a silly question, that can easily be disposed of, but the reality is much different and can pose serious harm to the rights of residents in nursing facilities.

I recently received a motion from a licensed nursing home seeking to be declared not a nursing home. What seemed like a simple issue quickly became complicated.

The nursing home sought this ruling in an obvious attempt to circumvent the private cause of action, and powerful attorney’s fee shifting, created by New Jersey’s Nursing Home Responsibilities and Rights of Residents Act (the Act).

While the purpose of this motion may be quite obvious to a trial attorney, the concern is that a confused judge, bogged down in legal nuance, could erroneously rule in favor of the nursing home causing dastardly results for many aggrieved plaintiffs.

To be clear, nursing homes are skilled nursing facilities that provide both short-term (subacute care) and long-term care. In New Jersey, there is no separate license for these two categories, rather they are lumped together under a license called  “Long Term Care Facility.”

In the motion, the nursing home essentially argued that the Act only applies to long-term care residents of nursing homes, and not short-term (or subacute) care residents.

This is a  somewhat creative argument, that is based on no foundation in law and shifts the onus onto the resident, instead of what license the nursing home holds. To accept this argument, a judge would have to draw the absurd conclusion that if you are neglected at a nursing home, but admitted for short-term care, you have no protective rights. On the other hand, if you are a long-term care resident, you are vested with immense protective rights.

In order to best respond, plaintiffs’ attorneys need to understand the necessity and importance of the remedial statute, enacted 45 years ago. The Legislature created the Act in response to the inferior treatment given to nursing home residents  In the 1985 case of In re Conroy, the New Jersey Supreme Court noted that the  Act aimed “to ameliorate the harsh conditions of the elderly in nursing homes” by delineating “certain rights of (nursing home) residents.” As a result, New Jersey citizens have been able to bring civil lawsuits against nursing homes for violations of resident’s rights.

Needless to say, for a court to hold that the resident’s rights do not apply to short-term care nursing home residents not only totally misreads the Act, but also eviscerates its purpose and intent to protect our vulnerable elderly population.

Now comes the frustrating question – how do we prove the obvious? Begin with highlighting the absurdities, and force nursing homes to live by their own words. Start by reviewing the admission agreement between your client and the nursing home. More often than not, nursing homes provide clients with a written copy of their resident’s rights, regardless of whether the admissions were for short-term or long-term care. Also, obtain the nursing home’s licensure file through OPRA. The licensure will likely reveal that the facility sought out, and obtained, a nursing home license.

Further, refer to your client’s Minimum Data Sets (“MDS”), which is contained in the medical records. Nursing homes must complete this document to obtain payment from Medicare. The MDS forms usually show that the nursing home repeatedly identified itself as your client’s “nursing home provider,” regardless of whether your client was a short-term resident.

Moreover, the federal Centers for Medicare & Medicaid Services (CMS) in its Long Term Care Facility Resident Assessment Instrument 3.0 User’s Manual, describes the MDS, as a “standardized communication about resident problems and conditions within nursing homes, between nursing homes, and between nursing homes and outside agencies.” The manual makes no distinction between short-term or long-term care. Finally, download the nursing home’s own web pages. Most facilities state, without distinction between length of stay, that they provide nursing home care to the community.

The bottom line is that nursing homes want the benefit of government money without the duties that come with accepting those funds. Trial attorneys must fight these motions hard.

The pandemic shined a light on the truism that care in nursing homes remains dreadfully poor since the creation of the Act. All nursing home residents need the Act’s protections more than ever. Let us all do our part to stop any further erosion of this most important statute.