Ila Swan: patient advocate


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How to file an appeal when the nursing home over-sight system tells you your complaint is 'unsubstantiated or 'no deficiencies found:

How to file an appeal when the nursing home over-sight system in your state, tells you your complaint is 'unsubstantiated or 'no deficiencies found.'  We all know the state oversight of nursing homes are at best inept and more likely corrupt.  Do not tolerate it when they tell you, what you saw is not what you saw. Just like the nursing homes, you have a right to appeal their findings.

You have 30 days after their notice to you, to file an appeal on their findings. Send a letter to them, informing them that you are not happy with their findings and you wish to appeal.  The state sets a time (usually within 30 days) where the inspector, you (and the family member if there is one) and a nursing home representative will all meet, go over your complaint and the findings of the state and the nursing homes answer to your complaint.  I always ask the state to furnish me a copy of the original inspectors investigation at the same time I request the appeal hearing.  The investigators notes should tell you who she talked to, what time she was there, what she did or did not do to check out your complaint.
The time before the appeal is heard, gives you time to go back into the facility, see the deficiency again (unless it was an unusual occurrence) take a picture, record with a recorder a call bell standing in, recording the time you start recording and the time the call bell is answered, count staff if you reported a shortage of staff, talk with others in the facility to see if they also have had the same problem,  and find a witness to the deficient care you reported.
Lets say I go to a facility and see a patient fall.  I turn in a complaint on the accident.  A month later, the state investigates and notifies me my complaint is 'unsubstantiated'    Now when I see a patient fall,  I look around for a witness, hopefully another visitor who sees the patient on the floor.  Get their name and write a short note that on Nov 1st at 4:15 PM, the patient was on the floor and no staff present.  If no one is around as a witness, pull out your camera and take a picture of the patient on the floor.  Try to go back within a week and take another picture of any bruising on the patient that fell.  I don't give the state all my information when I file my complaint, I simply tell them I saw this patient fall, give the date and time.
A fall is considered an unusual occurrence and by law the nursing home has to chart and report this incident.  (Most do not chart it and few report it)  The state goes in to investigate, the nursing home has not charted the fall, there are no witnesses and by the time the state gets there, the bruising if there was any has disappeared.  The facility denies any knowledge of a fall or that you notified them.  The inspector writes 'unsubstantiated and sends you a copy of the findings.  I then send a letter to the state asking for an appeal on their findings and I file another complaint against the nursing home for failure to chart the unusual occurrence. When the appeal is heard, I either have a recording or a witness or a picture, plus any other information from others who have also had the same problem.
State Licensing Agencies will investigate complaints against LTC Ombudsmen. So do not forget to file a complaint against an Ombudsmen when they fail to respond to problems in nursing homes.
Using the  "Freedom of Information Act".  You can get all kinds of information under a FOIA that under a normal request, would not be made available to you.
If the agency does not give you the information you believe to be public records and they don't give you a reason for their non-disclosure or they don't furnish the records to you in the mandated time frame, you first file a complaint with the Department of FOIA c/o Rosario Cirrincione Director  Room 645-F Hubert H. Humphrey Bldg. 200 Independence Avenue SW Washington DC 20201.  Fax 202-690-8320.  Give them 7 days to respond.  If they don't respond within the time allowed, contact an attorney, show them the FOIA Law and have him file an action.

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