Another Battle in Nursing Home Litigation
~Maryland peace orders utilized to limit access and visitation~
By Jeremy R. Krum
Nursing and rehabilitation centers often rely heavily on family
member involvement and family interaction with residents. Active family participation
is considered paramount to enabling a successful and healthy environment for
both the resident and the nursing center. However, occasions have arisen in
several states, including Maryland, where a family member or visitor’s
access and visitation must be limited and/or restricted. In those very rare
instances, a visitor’s abuse, disruption, harassment, intimidation or
verbal and physical threats cause not only safety concerns for both residents
and nursing center staff but may further cause the need for legally-imposed
restraint of the visitor.
The hotly-disputed issue of limiting and/or restricting resident
access and visitation rights has recently been growing, once again, on a national
level. In November 2004, the AARP Bulletin ran a story entitled “Battle
of the Banned”, which focused on a couple’s fight to remove a court
order limiting visitation rights to their respective mothers. The National
Citizens’ Coalition for Nursing Home Reform (NCCNHR) joined in by filing
amicus pleadings on behalf of the couple. The plight of the couple’s
struggle was picked up by several news organizations, weighing in on the arguments
presented by both family members, public interest groups, and nursing centers.
Whether reasonable restrictions of a family member may be imposed, if at all,
is at the heart of the issue.
Federal law, pursuant to the Nursing Home Reform Act of 1987,
clearly indicates and provides that a resident of a long-term care facility
has the right to immediate access to family members. Subject to the resident’s
consent, the law requires a nursing center to provide access by immediate family
members “or other relatives”. Occasionally, a resident is unable
to provide express consent and may be under the guardianship of a third-party
or under guardianship of the State. Nevertheless, when a family member or other
relative places the safety of residents and nursing staff in jeopardy – whether
through threats, harassment or through causing a hostile environment – the
nursing center should be entitled to seek relief through court order.
Although such relief by a nursing center is seldom sought,
the implications can be profound both for the resident and the resident’s
family. In Maryland, a peace order obtained through the district court is generally
only effective for a period of six months and may include significant restrictions.
However, in some cases, a six-month restriction or limitation may equate to
a term beyond the resident’s life expectancy. What does this mean for
the resident? For the family? And what considerations must be weighed on behalf
of the nursing center?
Public-interest groups and reform groups have asserted that
action taken on behalf of a nursing center can stifle and preclude cooperative
family environments and may be improperly applied as a method to retaliate
against complaints of poor care. Reform groups have also asserted that such
actions by nursing centers place family members in fear of complaining and
requesting change. Despite these concerns, nursing centers have in general
always sought to promote family group meetings, family councils and effective
communication through vocal/active family participation. When a family member
or visitor steps over the boundaries of reasonable discourse and debate and/or
generates a hostile and unsafe situation a balance of rights and restrictions
must be achieved.
Few will dispute that a resident’s best interests should
always be a primary consideration. A resident must have full freedom of association.
A resident’s mental and physical well-being must be considered and assessed,
as well as the resident and visitor’s relationship, demeanor, perceived
goals and plan of care. Family members can often be quite demanding of nursing
center staff, and indeed, they have a right and genuine duty to demand the
best care and treatment. However, there is a clear distinction between vocalization
of complaints to nursing center staff and threatening, disruptive and/or harassing
behavior. Family members and visitors must use the appropriate method and forum
for engaging nursing center staff. Ongoing and consistent occurrences of intimidating
and threatening behavior toward nursing center staff can cause significant
alarm and fear, not to mention appreciable safety concerns.
When limitations or restrictions are warranted through use
of the judicial process, care must be taken to impose only the least restrictive
means possible to ensure both safety to the nursing home and access to residents.
For example, the NCCNHR, through its online website, publishes and recognizes
several restrictions which may be sought when a family member or visitor’s
action frightens, upsets or harms a resident, including requirements that the
family member or visitor call in advance prior to arrival, requirements that
the visitor sign-in and sign-out of the facility, requirements that the visitor
be escorted or supervised by a qualified nursing staff member or a safety officer
and requirements that the visitor visit the resident only in a designated area.
More severe restrictions, such as specific time limitations or a complete bar
to entering the facility, should only be sought where there exists an immediate
threat of danger to the safety of residents and nursing center staff.
Summarized briefly, family members should utilize family
group meetings and family councils to engage nursing centers and vocalize questions
or concerns. Nursing centers should promote active participation and quality
improvements. And when disputes arise and family members and nursing center
staff find themselves in significant conflict, reasonable methods must be applied
to protect the rights and best interests of the resident. Only when conduct
becomes threatening, abusive, intimidating, harassing and/or disruptive should
a nursing center take the final step to limit or restrict access and visitation.
Jeremy R. Krum is an associate at Armstrong, Donohue, Ceppos & Vaughan,
Chartered, in Rockville, Maryland.