In New Jersey, Certified Nursing Assistants (CNAs) and Licensed Practical Nurses (LPNs) are often accused by their patients or employers of neglecting or abusing the patients in their care. Typically, these positions arise from employment in nursing homes, rehabilitation centers, and hospitals. As a New Jersey attorney representing many licensed or certified health care providers, I see a sharp increase in the number of CNAs and LPNs who are fired from their jobs and who are threatened with being listed on the “abuse registry” of New Jersey for the alleged patient. 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 attorneys can be most helpful.
Some allegations of abuse and neglect are, of course, justified. Despite their training, caregivers sometimes show a lack of knowledge or training or patience. Some are, in fact, negligent or abusive. Fortunately, however, most of the charges against CNA and LPN are for misdemeanors. However, these caregivers lose their jobs every day in New Jersey for crimes that would be excusable in most other fields of work. 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 accusation is made, the facility conducts an investigation. They can take statements from the caregiver, the alleged victim, the witnesses (if any), the charge nurse, the facility operator, and others. Unless the investigation reveals absolutely no evidence (genuine or otherwise) suggesting neglect or abuse, the 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 high demand if another patient were the victim of the same caregiver while the investigation was pending.
Many accused LPNs, CNAs, RNs believe they were fired for no real reason or proof. 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 employed “at will.” 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.
Employees “at will” can leave work whenever they want and for any reason, or even without giving a reason or notice. But sadly for them, the employer can also fire employees “at will” for almost any reason. The nursing home operator usually does not have to wait for the outcome of an investigation to fire 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 claim they were fired for such illegal reasons will have the heavy burden of proving that is true. Where the proof exists, an experienced attorney can help the fired employee get his job back or even sue for money damages.
In addition to losing your job, other life-changing events can still await the caregiver. When a CAN, LPN, or HHA is charged with 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. Typically, about a month after the alleged events, the caregiver receives a notice to attend an informal hearing in Trenton.
The Informal Hearing is the first in a series of hearings and appeals that can 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 clarify exactly what happened; allow the caregiver to explain or justify the action or inaction.
Although it is not necessary to hire an attorney for these hearings, it is generally advisable to do so, if you can afford it. By instructing the caregiver on procedures and how to give testimony, by explaining what is important and what is not, by helping the state understand our side, the attorney makes hearings go smoothly, often with better results. At the formal hearing, it is usually necessary to question the opposition witnesses. An experienced attorney can effectively cross-examine them to get to the truth. We were able to show, for example, that a CNA had not abandoned a patient with Alzheimer’s, but, due to the configuration of a bathroom, the passing NB 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 paying her unemployment benefits. An attorney is trained to present your case in the best possible way.
In New Jersey, CNAs and LPNs are often charged with abuse or neglect in residential care facilities. Some charges arise from minor incidents. Others reflect horrible facts. The consequences in both cases can be serious. An experienced attorney can often successfully defend abuse and neglect charges and save the caregiver’s license and reputation. It is always a good idea to consult an attorney with experience in these matters.