In New Jersey, Certified Nursing Assistants (CNAs) and Licensed Practical Nurses (LPNs) are often accused by their patients or employers of neglect or abuse of patients in their care. Usually these charges arise out of employment at nursing homes, rehabilitation centers and hospitals. As a New Jersey attorney who represents many licensed or certified health care providers, I see a steep rise in the number of CNAs and LPNs who are fired from their jobs and who are threatened with placement on the New Jersey’s “abuse registry” for alleged patient abuse or patient neglect. Many CNAs and LPNs lose their licenses for acts or omissions which appear to be minor, or even fabricated. These are the cases where attorneys can be the most helpful.
Some allegations of abuse and neglect are, of course, justified. Despite their training, caregivers sometimes show lack of knowledge or training or patience. Some are, in fact, neglectful or abusive. Fortunately, however, most allegations against CNAs and LPNs are for minor offenses. Nevertheless, such caregivers lose their jobs every day in New Jersey for offenses which would be excusable in most other fields of employment. Because of the close relationship between caregiver and patient, whenever a caregiver is accused of abuse or neglect of a patient, the charges are always taken seriously.
When an allegation is made, the facility conducts an investigation. They may take statements from the caregiver, the alleged victim, witnesses (if any), the nurse in charge, the facility operator, and others. Unless the investigation reveals absolutely no evidence (genuine or otherwise) to suggest neglect or abuse, an accused employee will usually not be allowed to return to work. Sometimes they are suspended while the investigation (real or otherwise) is pending. More often they are fired immediately or within a few days. The facility understands how vulnerable it would be to a large lawsuit if another patient was victimized by the same caregiver while the investigation was pending.
Many LPNs, CNAs, RNs so accused believe that they were fired for no real reason or without evidence. They are upset. They are sure that they cannot be fired without proof that they did something wrong. They are wrong. The large majority of caregivers in the work force are “at will” employees. This means they have no employment contract, and they do not belong to a union that has negotiated a collective bargaining agreement with the employer on their behalf.
“At will” employees may quit the job whenever they wish and for any reason, or even without giving a reason or notice. But, sadly for them, the employer may fire “at will” employees for almost any reason, too. The nursing home operator does not usually have to wait for the outcome of an investigation in order to fire the employee. Of course, even an “at will” employee may not be fired for illegal reasons such as gender, disability, race, religion, nationality, sexual orientation. Employees who allege that they were fired for such illegal reasons will have the difficult burden of proving that to be true. Where the proof exists, an experienced attorney can help the fired employee to get the job back or even to sue for monetary damages.
Besides losing his/her job, other life-changing events may still await the caregiver. When a CAN, LPN or HHA is accused of abuse and neglect in New Jersey, the facility (nursing home, agency, rehab center, hospital), must investigate the event and report the matter to the Department of Health and Human Services in Trenton. Usually within a month or so of the alleged events, the caregiver receives a notice to attend an Informal Hearing in Trenton.
The Informal Hearing is the first of a series of hearings and appeals that may determine whether the caregiver’s license will be revoked and his or her name placed on the Abuse and Neglect Registry. A Formal Hearing, If necessary, includes sworn testimony and documentary evidence. The hearings are designed to sort out exactly what happened; they enable the caregiver to explain or justify the action or inaction.
Although it is not necessary to retain an attorney for these hearings, it is usually wise to do so, if you can afford to. By instructing the caregiver on the procedures and how to give testimony, by explaining to the caregiver what is important and what is not, by assisting the state to understand our side, the attorney makes the hearings go more smoothly, often with better results. At the Formal Hearing, it is usually necessary to question adverse witnesses. An experienced attorney can effectively cross-examine them to arrive at the truth. We were able to prove, for example, that a CNA had not abandoned an Alzheimer’s patient, but, because of the configuration of a bathroom, the passing RN could not see the caregiver in the room. Another time we showed that the nursing home was wrongfully trying to get rid of an employee without having to pay for her unemployment benefits. An attorney is trained to present your case in the best possible light.
In, New Jersey, CNAs and LPNs are frequently charged with abuse or neglect at residential care facilities. Some charges arise from minor incidents. Others reflect horrible facts. The consequences in either case can be serious. An experienced attorney can often successfully defend charges of abuse and neglect and save the license and reputation of the caregiver. It is always a good idea to consult with an attorney with experience in these matters.