HEALTH CARE thoughts: Resident Rights versus Caregiver Rights
by Tom aka Rusty Rustbelt
HEALTH CARE: Resident Rights versus Caregiver Rights
In 1987 the federal government passed a comprehensive “bill of rights” for nursing home patients. Most states followed.
The law gives nursing home residents wide protection, including (when mentally able) the ability to refuse care, meals and just about anything else they please.
Resident care preferences regularly create all sorts of difficult issues though, including:
Can white residents refuse care from black nurses and nurse aides? ( a common problem)
Can female residents refuse care from male caregivers? (the courts say yes on privacy grounds)
Can residents request care from specific employees (a latino requesting a latino)?
Can residents request care from specific employees just because they like the employee?
Mrs. Rustbelt has dealt with all of these issues (recently) and many more. Her first comment was “I only have to do 12 hours work in 8 hours, of course I need to referee a unit full of adult children. Grrrrr.”
According to a recent federal court in an Indiana case, if a white resident requests “no blacks” and the facility accommodates (according to Indiana law) the facility has discriminated against the employee.
Keeping in mind the average nursing home resident is about 78 years old with multiple physical problems and some level of mental and emotional impairment, this creates just a great big mess, and the facility loses in every scenario.
The unintended consequences of government regulation. Everyone suffers except the bureaucrats, and the lawyer who profit. Anyone got any solutions?
The Bill of Rights and public law are not to be dismissed as “regulation”.
When I was stationed in Indiana in the 70’s we were briefed on local klan activities, the military then being far better integrated than Indiana. Sorry to see not much is changed.
According to case law if a nursing home were to permit patients’ sexual harrassment the home management could be prosecuted for sexual harrassment laws, too.
Workplace freedom is alien in Indiana?
well, there is always that last walk out into the blizzard. it’s too bad the “no blacks” patients don’t know that a black woman probably changed their diapers when they were new. but you can’t tell anybody anything after they are 13 so there’s not much hope there.
but i’m not very sympathetic to the nursing home operator. it’s a business. they chose to be in it. the patients need some protection because without it, the “hell hole” is what you will get.
Actually, this happens in every state, including “blue states.”
The problem is that in many cases doing A complies with one regulation and violates another.
So who deserves more protection, the resident or the employee?
“The problem is that in many cases doing A complies with one regulation and violates another.”
Isn’t there a legal concept that has to do with one law superseding another when the two conflict? Also, isn’t there another concept in law which holds that a law or regulation cannot violate the law? In law of contracts one cannot contract an illegal service or activity. It isn’t a
matter of one person’s protection over another. One’s bigoted behavior or preferences need not be protected. Would a nursing home operator be able to seek legal protection for his discriminatory hiring practices if that operator preferred to hire only white staff?
So if the family of the patient sues the facility for emotional damage to the resident will the government protect the facility? (answer: No)
i think you guys are missing the complexity of rusty’s question. i think his point is that in this case, protecting one side tends to harm the other and you cannot not break the law no matter what you do.
if you allow a patient to chose a caregiver of a race that makes them happy, it protects the patient and follows the refusal of care law, but violates the civil rights of the caregiver.
if you force caregivers onto patients, it harms them and breaks the law ensuring they can refuse care, but upholds civil rights.
someone loses either way, and in either case, the nursing home is open to a lawsuit.
there is a clash between the constitutional rights of the caregiver and the regulatory rights of a patient to refuse care if that refusal is for reasons that violate civil rights.
the point is that the home has effectively been put in a position where no matter what they do, they are breaking a law.
there is also a significant inconsistency with being able to refuse a caregiver based on sex but not race. (according to the courts) isn’t that a double standard?
i think rusty’s point is less about injustice and more about the tangle of contradictory laws that makes it impossible not to break one in this situation.
i sure wouldn’t want to be in that business.
tyger – somebody got it! thanks
Ah, but that somebody had to guess. The post essentially tells us two things. One is that there are some laws and regulations. The other is that there are difficulties. In reading through the difficulties, I see issues that would exist even if there were no laws or regulations.
It may be that law and regulation have made things objectively worse all around. It may be that they have made things worse for some and better for others. We cannot tell from the post. I can’t even claim that you haven’t proven your case, because as far as I can tell, you haven’t stated a case. All the post does is tell us that there are laws and regulation, and separately, that there are problems.
Torts exist even in the absence of regulation. In fact, other legal systems have a preference for one or the other. We seem not to have made a choice. We have weak regulation in some areas, weak enforcement of regulation in others, so that private cases in the courts are often the most effective method we have of enforcing what regulation there is. If the family of the patient could not sue the facility, the facility might not have any rational motive for treating its clients well.
We all know that there are bad regulations. We do not know, from this post, that regulation of nursing homes is particularly bad, or what could be done to improve regulation of nursing homes. We ask that employers in lots of businesses to strike a balance between conflicting interests of employees and clients – and owners and innocent by-standers. Other than letting nursing home operators do as they please, what exactly is it that you think needs to be done?
you are still missing this.
what he’s saying is that no matter the intentions or actions of a facility, they will wind up breaking the law if a patient refuses service from a careghiver due to race.
the laws are such that no course follows both.
you either violate the right to refuse care by stating that they have to accept a caregiver they don’t want, or you violate the civil rights of the caregiver by allowing the patient to refuse them based on race.
it’s sort of a scylla and charibdis situation for the home once put in the position.
that’s a bit of a fanciful argument. you are essentially arguing that if we could all just convince each other to get along, we’d get along. it’s a nice goal, but divorced from reality.
all it does is shift the blame for a contradictory set of laws to the caregiver for not being convincing enough. is that what you really want?
what are you going to do with someone who cannot be convinced?
kick them out of the home for demanding their right to refuse care? you’ll be sued.
Can a caregiver refuse a client/ resident because the client/ resident busted the caregivers lip?