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 the patients in their care. Typically, these charges arise from employment in nursing homes, rehabilitation centers, and hospitals. As a New Jersey attorney who represents many licensed or certified health care providers, I see a sharp increase in the number of CNAs and LPNs being fired from their jobs and threatened with placement on the “abuse registry” of New Jersey for alleged patients. patient abuse or neglect. Many CNAs and LPNs lose their licenses for acts or omissions that appear to be minor or even fabricated. These are the cases in which lawyers can be most helpful.
Some allegations of abuse and neglect are, of course, justified. Despite their training, caregivers sometimes show a lack of knowledge, training, or patience. Some are, in fact, negligent or abusive. Fortunately, however, most charges against CNAs and LPNs are for misdemeanors. Yet these caregivers lose their jobs every day in New Jersey for crimes that would be excusable in most other fields of employment. Due to 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 charge nurse, the facility operator, and others. Unless the investigation reveals absolutely no evidence (genuine or otherwise) to suggest neglect or abuse, an accused employee will generally not be allowed to return to work. Sometimes they are suspended while the investigation (real or not) is pending. More often they are fired immediately or within a few days. The center understands how vulnerable it would be to a large lawsuit if another patient were victimized by the same caregiver while the investigation was pending.
Many LPNs, CNAs, RNs so charged believe they were fired for no real reason or no evidence. They are upset. They are sure that they cannot be fired without proof that they did something wrong. You are wrong. The vast majority of caregivers in the workforce are “at-will” employees. This means that they do not have an employment contract and do not belong to a union that has negotiated a collective agreement with the employer on their behalf.
“At-will” employees can quit at any time and for any reason, or even without giving reason or notice. But unfortunately for them, the employer can also fire employees “at will” for almost any reason. The nursing home operator generally does not have to wait for the outcome of an investigation to terminate the employee. Of course, even an “at-will” employee cannot be fired for illegal reasons such as gender, disability, race, religion, national origin, or sexual orientation. Employees who allege that they were fired for such illegal reasons will have the heavy burden of proving that this is true. When proof exists, an experienced attorney can help the terminated employee get their job back or even sue for money damages.
In addition to losing your 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, rehabilitation center, hospital) must investigate the event and report the matter to the Department of Health and Human Services in Trenton. Typically, within about a month of the alleged facts, the caregiver receives notice to attend an informal hearing in Trenton.
The Informal Hearing is the first in a series of hearings and appeals that may determine whether the caregiver’s license will be revoked and their name placed on the Abuse and Neglect Registry. A Formal Hearing, if necessary, includes sworn testimony and documentary evidence. Hearings are designed to resolve exactly what happened; allow the caregiver to explain or justify the action or inaction.
Although it is not necessary to hire a lawyer for these hearings, it is generally advisable to do so if you can afford it. By instructing the caregiver in procedures and how to testify, by explaining to the caregiver what is important and what is not, by helping the state understand our point of view, the attorney makes hearings go smoother, often with better results. At the formal hearing, it is usually necessary to cross-examine the other party’s witnesses. An experienced attorney can effectively cross-examine them to get to the truth. We were able to verify, for example, that a CNA had not abandoned an Alzheimer’s patient, but, due to the configuration of a bathroom, the NB that passed by could not see the caregiver in the room. On another occasion we showed that the nursing home was trying to get rid of an employee without having to pay her unemployment benefits. An attorney is trained to present your case in the best possible light.
In New Jersey, CNAs and LPNs are frequently accused of abuse or neglect in 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 caregiver’s license and reputation. It is always a good idea to consult with an attorney who is experienced in these matters.
