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Nationwide Staff Shortage at Nursing Homes Sets the Stage for Abuse and Neglect

Nursing home abuse and neglect is a nationwide problem and, unfortunately, the situation isn’t any better in New York than it is anywhere else. A 2011 study at Cornell University estimated that, in New York alone, over a quarter of a million elderly people have been subject to some form of abuse, whether inside or outside of a nursing home, and that less than five percent of these cases have been referred to the authorities.

There is a fine line between abuse and neglect, of course. If a resident is left immobile long enough to develop bedsores, for example, does that count as abuse or neglect? Ultimately, it doesn’t matter. Either way, it is abuse, and one of the main causes of nursing home abuse is understaffing.

The Understaffing Problem

By some standards, well over 90 percent of New York nursing homes are understaffed. And the nursing homes with the worst records of abuse and neglect are the ones that typically suffer from the worst understaffing problems. There is more than one reason why so many nursing homes are seriously understaffed, including:

  • The burgeoning population of elderly people as a consequence of the aging of the Baby Boom generation.
  • The profit motive. Private nursing homes in particular are quite sensitive to the bottom line, and some private nursing homes cut staff to the bone in order to reduce costs and maximize profit. Even public nursing homes have budgets to meet. Obviously, this state of affairs can result in substandard nursing home care.
  • High turnover rates due to the stress of working in a nursing home.
  • Overtime pay: Due to well-intentioned employment laws, it is more lucrative to work overtime than to work your first 40 hours in a given week. This reality encourages some nursing home employees to frequently volunteer for overtime, thereby relieving the nursing home of the need to hire additional staff. Naturally, fatigued employees tend to provide substandard care.

Consequences of Understaffing

Some of the most common effects of nursing home understaffing include:

  • Long waiting periods to be taken to the bathroom, have diapers changed, or receive feeding assistance;
  • Overstressed staff who are more likely to commit overt acts of abuse such as physical or verbal abuse;
  • Failure to provide personal care and hygiene;
  • Development of bedsores (decubitus ulcers) because overworked staff rarely changes the body position of an immobile resident;
  • Failure to provide necessary medical care or medication;
  • Development of serious infections (from bedsores, for example);
  • Slip and fall accidents arising from inadequate supervision;
  • Dehydration and malnutrition; and
  • Lack of social interaction.

Understaffing and Sexual Abuse

Sexual abuse of nursing home residents is more common than is generally understood. Two ways that understaffing can contribute to sexual abuse are:

  • Lack of adequate security. Nursing home sexual abuse is sometimes perpretrated by outsiders who sneak into the facility.
  • Lower hiring standards due to a shortage of staff, which is often caused by low pay. Lower hiring standards make it easier for people to get jobs at nursing homes who should never be allowed to work there, who might have been accused of sexual abuse in the past, and who might go on to commit further abuse.

Warning Signs of Nursing Home Abuse

The following is a short list of only a few of the more well-known signs of nursing home abuse. If you observe any of these, it should put you on notice to investigate further.

  • Sudden injuries such as broken bones, sprained joints, bruises, burns or swelling;
  • The development of a sexually transmitted disease (STD);
  • Sudden and unexplained changes in mood or behavior;
  • Staff refusal to allow visits from friends or family;
  • Deteriorating personal hygiene;
  • Unexplained weight loss;
  • Dirty living space or soiled bedding; or
  • Bedsores.

Reporting Abuse

New York authorities accept complaints about any incidents of nursing home abuse that occurred within a year before the filing of the complaint. To report nursing home abuse to the New York State Department of Health, Division of Nursing Home and ICF/IID Surveillance, complete the Nursing Home Complaint Form, print it out, and then mail it to:

New York State Department of Health DRS/SNHCP
Mailstop: CA/LTC
Empire State Plaza
Albany, NY 12237

You can also fax the form to 518-408-1157, or scan it and email it to nhintake@health.state.ny.us. If you need immediate attention, you can also call the nursing home complaint hotline at 1-888-201-4563.

Personal Injury Claims

Once you have taken steps to get the abuse stopped, it is time to seek fair compensation on behalf of your loved one. Personal injury claims against nursing homes are generally characterized as negligence claims, although some incidents are rightfully characterized as intentional torts.

Violation of a Nursing Home Regulation

New York nursing homes are regulated at both the state and federal level. Under New York law, violation of a regulation is not considered automatic negligence, but merely evidence of negligence (violation of a statute, on the other hand, is considered automatic negligence). What this means is that even if you prove that the defendant violated a regulation, he can still argue that the violation was not serious enough to constitute negligence.

If the defendant loses this argument because the court agrees that the defendant’s regulatory violation was serious enough to constitute negligence, all you will have left to prove to establish liability is to show (i) the negligence actually caused the injury suffered by your loved one, and (ii) your loved one suffered damages thereby.

Ordinary Negligence and Intentional Acts

Nursing home staff are charged with the duty of properly caring for your loved one. If they fail to perform that duty, either by acting inappropriately or by failing to take the actions necessary to perform their duties, a court can find negligence or even intentional misconduct, even if it cannot point to a specific violation of nursing home regulations. A nursing home can be found vicariously liable for both negligent and intentional misconduct by its employees.

Personal Injury Compensatory Damages

Damages for a nursing home personal injury claim can include:

  • Medical expenses arising from the abuse;
  • Physical pain and suffering arising from the abuse;
  • Emotional trauma arising from the abuse;
  • Bodily injury arising from the abuse; and
  • Punitive damages.

Lost earnings are available in many personal injury claims but are not generally available in nursing home abuse claims. This is because very few nursing home residents are either employed or expect to work in the future.

Wrongful Death Claims

If your loved one died as a result of nursing home abuse, his or her personal injury claim becomes a wrongful death claim, which can be filed by the probate estate. The personal representative of the probate estate, typically a close relative, can file a wrongful death lawsuit on behalf of the estate for eventual distribution to the beneficiaries.

Wrongful Death Compensatory Damages

A wrongful death claim arising from nursing home abuse can seek the following types of compensation:

  • Funeral and burial expenses
  • Health care expenses that arose from the nursing home abuse;
  • Pain and suffering endured by your loved one prior to death; and
  • Interest on the award from the date of death to the date of actual payment.

Certain other types of damages such as lost earnings, lost inheritance, and loss of financial support provided to offspring, typically does not apply to nursing home residents.

Punitive Damages

Punitive damages are awarded, if at all, in addition to the ordinary compensatory damages described above. They can be awarded in either personal injury or wrongful death cases. Although punitive damages are relatively uncommon, they are more likely to be awarded in a nursing home abuse case than in other types of cases due to the moral repugnancy of nursing home abuse in the minds of jurors.

Although cases of active abuse are more likely candidates for punitive damages than cases of passive neglect, cases of severe neglect can certainly qualify for punitive damages. A general rule of thumb is that the amount of punitive damages may not exceed ten times the amount of compensatory damages.

The Statute of Limitations

Generally speaking, a nursing home abuse lawsuit must be filed within three years of the abuse complained of. Certain exceptions exist, however: If the abuse was a recurring phenomenon, for example, the three-year period might not start to run until the last act of abuse occurred. A wrongful death lawsuit must usually be filed within two years of the date of death of your loved one.

Consult with your lawyer on this matter. Exact statute of limitation deadlines are very fact-dependent when it comes to nursing home abuse lawsuits.

Settlement

The majority of nursing home abuse claims are settled out of court without a trial, because defendants fear runaway juries whose sympathies may lead them to issue extremely high damages awards. If the statute of limitations deadline is looming, however, your best bet is to go ahead and file a lawsuit and continue negotiating while awaiting a trial date. You can always withdraw the lawsuit if you reach an acceptable settlement.

Take Action Now to Protect Your Loved One

If you suspect that your loved one has fallen victim to nursing home abuse or neglect, don’t wait until your suspicions mature into absolute certainty. An experienced nursing home abuse attorney knows the telltale signs of nursing home abuse and can help you investigate and confirm your suspicions. This is so that the abuse can be halted immediately and you can begin preparing a compensation claim.

Contact E. Stewart Jones Hacker Murphy by calling our Albany office at (518) 730-7270 or by contacting us online to schedule a free case consultation. We also maintain offices in Troy, Saratoga, and Latham.

James E. Hacker, Esq. Named a “Fellow” of the International Academy of Trial Lawyers

 

 

 

 

 

 

 

 

 

 

 

 

 

International Academy of Trial Lawyers

ESJHM Managing Partner James E. Hacker, Esq. was named a “Fellow” of the International Academy of Trial Lawyers in London this past April.

Founded in 1954 the Academy is an invitation only group of elite trial lawyers. The International Academy of Trial Lawyers is recognized as one of the most prestigious organizations of trial attorneys in the world, limiting its membership to 500 trial lawyers in the U.S.

The law firm’s founding partner E. Stewart Jones, Jr. has also been a Fellow in the Academy for the last 30 years.

Sealing Criminal Records in New York

A criminal conviction, or even an arrest that did not lead to a conviction, can follow you around for the rest of your life. You may be denied housing, employment, or a professional license for this reason – and you might not even be told why, for example, that your employment application was rejected. New York, however, allows criminal records to be sealed from public view, thereby allowing you to conceal it from those who would use it against you.

Eligibility Requirements

To have your criminal record sealed, one of the following cases must apply to you:

  • There is an error on your criminal record.
  • The criminal charge that you wish to seal was resolved in your favor – a charge that was dismissed, for example, or a charge for which you were acquitted.
  • Non-criminal violations such as traffic violations can be sealed.
  • Many drug-related offenses can be sealed if you were sentenced to complete a judicially ordered drug treatment program and successfully completed that program.
  • Misdemeanors and certain felony convictions can be sealed if you committed no more than two such offenses and if no more than one of them was a felony. You must wait until 10 years have passed since the date of your sentencing or the date of your release from incarceration, whichever is later. Although the court has the discretion to decide whether or not to seal your record, certain serious offenses can never be sealed.

Criminal offenses committed when you were a juvenile are sealed automatically. Unfortunately, drug-related offenses for which you successfully completed a drug diversion mandate cannot be sealed, even if your case was dismissed.

Who Can See Your Criminal Record Even after It Has Been Sealed

In New York, the following parties can still view your criminal record even after it has been sealed:

  • Any person that you give written permission to
  • Your prospective employer, if you apply to become a member of a law enforcement agency
  • Your parole officer, if you are arrested while you are on parole or probation
  • Law enforcement officials, or a prosecutor, in response to a court order. This probably won’t happen unless you are arrested for a new crime that is related to a crime that has been sealed.

Procedure

To apply for the sealing of your criminal record, you must complete the following procedures:

  • Obtain a criminal Certificate of Disposition for CPL 160.59 Sealing application from the court with jurisdiction over your case. You will need one of these for each entry in your criminal record that you wish to have sealed.
  • Complete the application and turn it into the appropriate court.
  • Pay the filing fee. The fee is $5 per certificate outside of New York City and $10 per certificate inside New York City.
  • Wait until you receive your Certificate(s) of Disposition from the court.
  • Complete a separate Sealing Application for each item you wish to have sealed. Don’t sign it yet. Sign the sealing application in the presence of a Notary Public
  • Gather together any evidence of rehabilitation that you have collected (see below).
  • Copy the Certificate of Disposition, the Sealing Application, and your evidence of rehabilitation, and send a copy to the District Attorney’s office by mail or hand delivery. If you are seeking to seal more than one conviction in more than one jurisdiction, you will need to deliver these items to two different District Attorneys. Be sure to make an extra copy for your own records.
  • Fill out an Affidavit of Service to each DA you sent the application to, and sign it in front of a Notary Public. If someone else sent these documents on your behalf, they must complete the Affidavit of Service, not you. Copy the Affidavit(s) of Service for your records.
  • Send the originals of the foregoing documents plus the original Affidavit(s) of Service to the appropriate court. If you are applying to have convictions or guilty pleas sealed, this means the jurisdiction where the most serious conviction was entered or, if you are applying for sealing of two convictions of equal seriousness, to the court in the jurisdiction of the most recent conviction. There is no filing fee.
  • Wait to receive a copy of your Seal Order. You will receive this only if your application is successful.
  • Complete a Request for Seal Verification form and send it to the address printed on the form. You should receive a letter in the mail confirming that your criminal record has been sealed.

Evidence of Rehabilitation

Since judges typically enjoy broad discretion in deciding whether or not to allow a criminal record to be sealed, submitting evidence of rehabilitation (in the event that you are applying to have an actual conviction or guilty plea sealed) is one of the best ways of maximizing your chances of success.

Although the concept of “rehabilitation” is inherently nebulous, the following are some time-tested ways of convincing a judge that you have indeed rehabilitated. All of this evidence must concern your behavior after your last conviction.

  • Transcripts and letters of support from teachers and school administrators if you have been to school since your conviction.
  • Certificates of completion and letters from job training program administrators.
  • A letter from your employer testifying to your rehabilitation. The most persuasive letter would come from a direct supervisor.
  • A letter from your parole or probation officer.
  • Letters from people who have supervised you or worked with you in volunteer programs.
  • Letters from people who are in a position to evaluate your performance in a drug rehab program, psychological counseling program, or some similar program.
  • A Certificate of Good Conduct  (you must submit a separate application for this) or a Certificate of Relief From Disabilities (you must also submit a separate application for this)..

Let Us Help You Clear Your Name

Sealing your criminal records is a job that must be done right, and it must be done right the first time. Retaining a skilled New York criminal lawyer can be critical to avoiding the mistakes that could ruin your application. Contact E. Stewart Jones Hacker Murphy at (518) 730-7270 (our Albany office) or contact us online to schedule a time for us to discuss your case. We also maintain offices in Troy, Saratoga, and Latham.

James E. Hacker Inducted into the International Academy of Trial Lawyers

 

International Academy of Trial Lawyers

James E. Hacker Inducted into the International Academy of Trial Lawyers

James E. Hacker of E. Stewart Jones Hacker Murphy in Troy, NY was recently inducted into the International Academy of Trial Lawyers (IATL) at their Annual Meeting in London held in April 2019.  

The International Academy of Trial Lawyers limits membership to 500 Fellows from the United States, and includes Fellows from nearly 40 countries across the globe.  The Academy seeks out, identifies, acknowledges and honors those who have achieved a career of excellence through demonstrated skill and ability in jury trials, trials before the court and appellate practice.  Members are engaged in civil practice on both the plaintiff’s and the defendant’s side of the courtroom, and the trial of criminal cases. The Academy invites only lawyers who have attained the highest level of advocacy.  A comprehensive screening process identifies the most distinguished members of the trial bar by means of both peer and judicial review. Mr. Hacker has been evaluated by his colleagues and the judges in his jurisdiction and has been highly recommended by them as possessing these qualifications and characteristics.

Chartered in 1954, the Academy’s general purposes are to cultivate the science of jurisprudence, promote reforms in the law, facilitate the Administration of Justice, and elevate the standards of integrity, honor and courtesy in the legal profession.

 

Do You Need an Accident Reconstruction Specialist for Your Motorcycle Accident Claim?

Lawyers like to use accident reconstruction specialists in motorcycle accident claims for one primary reason: You aren’t going to find a more persuasive witness than the laws of physics. And in a best-case scenario, an accident reconstruction specialist for the plaintiff will be able to prove that either (i) the accident was the defendant’s fault, or (ii) for some mysterious reason, the laws of physics failed to operate normally during the accident.

If you were injured in a motorcycle accident claim, that’s pretty much a slam-dunk for your claim. Although not every favorable conclusion reached by an accident reconstruction specialist is as clear-cut as that, given the scientific complexity of many motorcycle accident claims, an expert witness like this might come in handy.

Some Examples of Situations in Which an Accident Reconstruction Specialist Might Be Useful

Suppose, for example, that you slammed into the rear of a truck. Were you following too closely, or did the truck driver stop so suddenly that you couldn’t have avoided the accident? Alternatively, suppose that the defendant’s fault in the accident is clear, but he asserts that the accident was partly your fault because you were speeding at the time of the accident. An accident reconstruction specialist might be able to calculate your speed before you braked.

Who Qualifies as an Accident Reconstruction Specialist?

An accident reconstruction specialist might be someone with an engineering or applied science background, or perhaps a law enforcement official with specialized training. “My uncle Tim who knows all about cars” is not likely to suffice, no matter how skilled he might be. That is, unless he earned formal credentials that can convince the court that he knows what he’s talking about. “Formal credentials” might include an engineering degree, for example, or accreditation form the Accreditation Commission for Traffic Accident Reconstruction (ACTAR).

A skilled lawyer can help you locate an appropriate accident reconstruction specialist. The three most important factors in selecting an accident reconstruction specialist are:

  • Academic credentials;
  • Experience in the field; and
  • Reputation for ability and integrity.

A deficit in any one of these areas could seriously compromise the evidentiary value of using an accident reconstruction specialist.

The Investigation Stage

Before an accident reconstruction specialist does any brain work or number-crunching, he will investigate the accident to gather as much relevant information as possible. His activities might include:

  • Visiting the scene of the accident;
  • Taking note of nearby road signs and signals to identify any confusion or visibility issues;
  • Inspecting any vehicle damage;
  • Reviewing medical records;
  • Examining the police report;
  • Watching surveillance footage of the accident, if any exists;
  • Interviewing witnesses;
  • Examining photographs taken after the accident;
  • Studying debris, skid marks, etc.; and
  • Retrieving data from a truck’s “black box” – which works like a simplified version of a black box on a plane.

The Analysis Stage

Once the accident reconstruction specialist has gathered the necessary data, he will analyze it thoroughly and create various scenarios of how the accident occurred. He may also use complex software programs to re-enact the crash and to determine which scenario is most likely – in light of the evidence. For example, he might:

  • Evaluate the physics of the accident scene by, for example, calculating the speed of the vehicles and their relative positions at different moments during the accident sequence. This could be done by analyzing skid marks, vehicle weight, and friction.
  • Determine impact angles based on damage to the vehicles.
  • Measure post-impact distances traveled by the vehicles and passengers involved.
  • Determine the exact circumstances of the accident and how the injuries occurred.

An accident reconstruction specialist may perform numerous other calculations and reach other conclusions, as necessary, under the particular circumstances.

The Final Report

A final report issued by an accident reconstruction specialist is an important piece of evidence, although its utility is limited by his own credibility. The report may include:

  • A risk analysis, which might help the court to determine whether a given action taken by a driver constituted negligence (remember, however, that the question of negligence is primarily a legal question, not a scientific question);
  • A review of driving errors committed by the defendant;
  • A description of the most likely accident scenarios, along with an estimation of the likelihood of each scenario;
  • An identification of ways in which the accident could have been avoided or rendered less serious at various stages in the accident sequence;
  • A review of regulatory compliance and how it might have affected the accident – if regulatory compliance issues are involved (if poor vehicle maintenance is an issue in the case, for example, or if the defendant was driving on a commercial license);
  • A computer-aided simulation of the crash (using diagrams or 3D animation);
  • A passenger injury analysis based on the movement of the occupants of the vehicle during  the accident; and
  • Other issues that may be relevant in a particular case.

Testimony

Accident reconstruction specialists are considered expert witnesses, and they are usually paid for their services; in fact, they may even earn a full-time living that way. Although you can be almost certain that the opposing party’s lawyer will cross-examine your accident reconstruction specialist and bring to the court’s attention the fact that he is being paid for his services, this does not normally present a serious problem in either civil lawsuits or settlement negotiations.

Nevertheless, many trials boil down to a “battle of the experts” in which both sides retain accident reconstruction specialists who reach opposite conclusions. In that situation, the case could come down to which side’s accident reconstruction specialist delivered the most persuasive testimony or possessed the most impressive set of credentials.

Contact Us Today

If you were hurt in a motorcycle accident that you suspect might have been the fault of someone else (whether another driver, a product manufacturer or a third party), you need to get started pursuing your claim, right away. Contact E. Stewart Jones Hacker Murphy, immediately, either by reaching out to us online or by calling our Albany office to schedule a free case evaluation. We also maintain offices in Troy, Saratoga and Latham.

Nursing Home Sexual Abuse: The Silent Epidemic

Title IX Sexual Harassment

To say that nursing home abuse is a horrifying act is an understatement. The appropriate adjective to describe the nursing home sexual abuse, however, would be “unspeakable” – except that we must speak of it, because it is a tragic reality. The December 2018 case of a nursing home resident who gave birth after having been in a vegetative state for years has finally brought the problem of nursing home sexual abuse to the national attention it deserves.

The problem is not nearly as rare as the relative media silence might suggest. And when the media does peek past the veil, the results are beyond disturbing. A 2017 CNN investigation, for example, found that between 2013 and 2016, the federal government issued more than 1,000 citations to nursing homes for mishandling reports of nursing home sexual abuse.

A Sampling of Recent Cases

The following cases are more or less typical examples of nursing home sexual abuse:

  • In 2014, it came to light that 83-year old Alzheimer’s victim, Sonja Fischer, had been raped at least once by a staff member at the nursing home where she resided. The nursing home had recently received the highest possible quality rating from the Centers for Medicare and Medicaid Services (CMS).
  • In June 2017, 21-year-old, Justin Glenn Ellis, was charged with raping an 88-year-old woman after sneaking into a nursing home in Houston. He is suspected of involvement in several other similar crimes.
  • In August 2017, nursing aid, Luis Gomez, was convicted of six sexual offenses against nursing home residents. The conviction followed multiple “unsubstantiated” allegations against him that allowed him to continue working.

The foregoing examples are just the tip of the iceberg; literally thousands of allegations have surfaced over the past 10 years.

Efforts to Redress the Problem

State and federal governments have moved slowly and haltingly to address the problem that nobody wants to talk about, but changes have been made:

  • A 2011 federal law empowers the CMS to fine individual staff members at nursing homes. It is not only perpetrators who face scrutiny – fines of up to $200,000 can be assessed against staff members who fail to report an incident based on “reasonable suspicion” that abuse has occurred
    • In November 2016 the CMS changed the way it inspects nursing homes to render the results a more accurate reflection of the facility’s actual quality.The Nursing Home Compare database (a national registry of nursing homes) is available to compare Medicare-funded facilities based on the Five-Star Quality Rating System. This database also reports any recent citations issued to a nursing home.
  • A proposed regulation would punish nursing homes that fire “whistleblowers” by withdrawing all federal funding from them.

The efforts that are being made are undeniably admirable, but they are simply not enough. Raising public awareness of the problem, however, holds the promise of effective future reforms.

Why the Problem Has Been Ignored for So Long

Nursing home sexual abuse is particularly difficult to detect and substantiate for several reasons:

  • Nursing home sexual abuse victims often suffer from cognitive disabilities such as Alzheimer’s disease.
  • Nursing home staff frequently lack specific training on how to spot sexual abuse.
  • Nursing homes, fearing lawsuits, burdensome investigations, and even criminal charges, sometimes prioritize their own well-being over the well-being of their residents.

Perhaps the most important factor of all (and one of the most shocking) is that there is no comprehensive national data on the aggregate number of nursing home sexual abuse cases that have occurred nationwide. This lack of data renders the problem difficult to study, much less combat.

Telltale Signs of Nursing Home Sexual Abuse

The following are a few of the tell-tale signs of nursing home abuse. If your loved one exhibits more than one of them, you should be on the alert.

  • Bruises appearing in genital areas, breasts, and thighs
  • Vaginal bleeding without a medical reason
  • Torn or bloodstained clothing
  • Difficulty sitting or walking
  • Depression, emotional withdrawal or moodiness
  • Anxiety in the presence of a caregiver
  • Unexplained sexually transmitted diseases (STDs)

Some of these signs, of course, could be generated by something other than sexual abuse.

What Can Be Done

At the family level, you should be aware of the potential for nursing home sexual abuse, remain vigilant, and dare to think the unthinkable without jumping to conclusions. Remember that anyone inside or outside the victim’s family can report suspected nursing home abuse to New York’s long-term care ombudsman program. In addition, the following initiatives, if aggressively executed, might drastically reduce the incidence of nursing home sexual abuse:

  • Increase the pool of available nursing home staff so that nursing homes will keep the facility well-supervised and so that nursing homes will not be tempted to hire staff with questionable backgrounds.
  • Strengthen federal regulations concerned with the reporting and sharing of information on nursing home staff who have engaged in sexual or other types of abuse.
  • Create a national background check registry to vet applicants for nursing home staff positions.
  • Publish resident and family satisfaction ratings for nursing homes.

Seeking Fair Compensation

Nursing home administrators may be able to escape criminal charges by asserting that “We had no idea that [the perpetrator] would do something like that.” It is a lot more difficult, however, for them to escape civil liability. If the abuser was an employee of the nursing home, the nursing home itself is likely to be held automatically liable for his actions – even if the nursing home administration itself was not at fault. Negligent hiring could be another way of establishing liability.

If the abuse was committed by an independent contractor or by another resident, liability on the part of the nursing home must be shown before the nursing home itself can be held liable. In this instance, a nursing home sexual abuse lawyer may try to prove that the perpetrator was inadequately supervised or that the nursing acted negligently in retaining a particular contractor.

Nursing homes are extensively regulated by New York nursing home regulations and, if the facility accepts Medicaid/Medicare, by federal nursing home regulations. Violation of  nursing home regulations is usually considered automatic negligence in New York, and it will establish liability if the violation resulted in the abuse. Nursing home neglect, as evidenced by bedsores (also known as decubitus ulcers or pressure sores), can also trigger liability.

The Time to Act Is Now

If you suspect that your loved one is a victim of nursing home sexual abuse, time matters. Contact E. Stewart Jones Hacker Murphy either online or by calling our Albany office at (518) 730-7270 to schedule a free initial consultation. We also maintain offices in Troy, Saratoga and Latham.

Change Is in the Air: Proposed Title IX Changes Could Dramatically Impact How Schools Handle Sexual Misconduct Allegations

sexual-assault-gavel

Campus sexual assault, and how schools handle it, is a hot-button political issue that stirs strong emotions on both sides of the debate. The Obama administration issued far-reaching reforms of campus sexual assault policy under Title IX by conditioning federal funding on schools’ compliance with certain reforms. The result was dozens of lawsuits filed by students who were expelled on the basis of adverse results in sexual misconduct grievance procedures.

Schools were caught in a crossfire. If they followed the rules, they were likely to face lawsuits, but if they failed to comply, they would risk losing federal funding. The changing of the guard from the left-leaning Obama administration to the right-leaning Trump administration added to the confusion. Now, Education Secretary, Betsy DeVos, is proposing new changes to the campus sexual misconduct policy.

Obama Era Title IX Reforms: The 2011 “Dear Colleague” Letter

The Obama administration’s “Dear Colleague” letter, issued by the Office for Civil Rights, required thousands of US institutions of higher education to comply with the following guidelines in order to avoid losing federal funding:

  • Apply the “preponderance of the evidence” standard of proof, the standard that is normally used in civil lawsuits. What this means is that a sexual misconduct allegation will be considered proven if the totality of the evidence indicates that the defendant is guilty – at least a 51 percent likelihood of guilt, if one must assign a percentage value to this standard.
  • Allow accusers to appeal “not guilty” findings; a result that would place the accused in “double jeopardy” according to some jurists.
  • Accelerate the adjudication process to keep it within 60 days, if possible.
  • Prohibit the cross-examination of accusers. Although this particular prohibition was strongly suggested rather than required, it could be treated as a requirement by institutions that fear the loss of federal funding.

Many colleges and universities resorted to the “single-investigator model.” This is where a single person would interview the accuser, the accused, and any witnesses, and then draft and submit a report that issues findings and recommendations.

Doe vs. Baum: The Sixth Circuit Court of Appeals Decision

The first rumblings of change came out of the US Sixth Circuit Court of Appeals in the case, Doe vs. Baum, which was an appeal of a 2017 case that was originally filed with the US District Court. The court in Doe vs. Baum ruled that the due process rights of a University of Michigan student were violated when he was expelled after being found responsible for sexual assault without the opportunity to cross-examine his accuser.

According to the opinion, “Due process requires cross-examination in circumstances like these because it is ‘the greatest legal engine ever invented’ for uncovering the truth. Without the back-and-forth of adversarial questioning, the accused cannot probe the witness’ story to test her memory, intelligence, or potential ulterior motives.”

University of Michigan President, Mark Schlissel, expressed the University of Michigan’s opposition to the ruling in no uncertain terms. Since the ruling was based on the U.S. Constitution, however, its authority is superior to the authority of the 2011 “Dear Colleague” letter. Because of the Sixth Circuit Court of Appeal’s limited jurisdiction, however, it only applies in Michigan, Ohio, Kentucky, and Tennessee.

Proposed Changes

The following are some of the proposed changes to the application of Title IX to campus sexual misconduct allegations:

  • Schools would only be required to respond to an actual report of sexual misconduct. In other words, they would no longer be considered obligated to respond because they “knew or should have known” about an allegation or an incident. Even if the new guidance passes, however, schools will not be limited to responding to formal complaints. Their obligation to respond could still be triggered, for example, by multiple verbal complaints to a responsible university official about the same individual.
  • Schools would not be required to respond to incidents that occurred off-campus (at a local bar, an off-campus park, or in an off-campus “student ghetto” area, for example). Should a school choose to narrow its own jurisdiction by not responding to off-campus incidents, the alleged victim would be required to contact the civil authorities, such as the police, in order to file a claim.
  • The definition of “sexual harassment” would be considerably narrowed. Under the Obama administration guidance, sexual harassment was defined as “unwelcome conduct of a sexual nature.” This has been criticized as so vague that it could be interpreted to include even a polite request for a date. Under the proposed new guidelines, sexual harassment would be redefined as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.”
  • Schools would be allowed to apply a stricter standard of proof known as “clear and convincing evidence” to sexual assault grievance proceedings. “Clear and convincing evidence” is a higher standard of proof than the “preponderance of the evidence” standard required by the Obama administration, but it is still a much lower standard of proof than the “beyond a reasonable doubt” standard that applies to criminal prosecutions.
  • Mediation would be allowed in sexual misconduct cases.
  • The school would be required to allow the accused student to retain an adviser with the authority to cross-examine the accuser. This proposal has drawn strong criticism from victim’s advocate groups.

At the time of this writing, these changes have not yet gone into effect. Although they may never go into effect without amendment, it is likely that whatever guidance does eventually go into effect will not be radically different than what is being proposed right now.

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