If I report suspected abuse or neglect of a nursing home resident, can my employer retaliate against me?
The answer is “no” if you work in Ohio and follow the reporting requirements.
Ohio has a statute that protects employees of nursing homes, long term care facilities, and residential care facilities from being fired or disciplined if they make a good faith report of suspected abuse or neglect. The law is intended to protect elderly people from being mistreated, by protecting anyone who makes a report of suspected abuse or neglect. The word “suspected” is important because it means you don’t have to prove there was in fact abuse or neglect to be protected against retaliation for reporting it. As long as you “suspected” a patient was being mistreated, you should be protected against retaliation if you “blow the whistle.”
Report the Nursing Home Abuse
The statute does not say to whom the “report” must be made, or in what form. It is clear that the whistleblower report does not have to be made to the Ohio Director of Health or to any official governmental agency. But it should be made to someone who is in a position to correct the problem—a family member of the victim, a supervisor or other ranking employee of the facility, or even law enforcement. But to be safe, you should always report any suspected abuse or neglect to the facility itself—to a manager or officer, the director of nursing, or the medical director—in addition to any other report you think should be made. In fact, the facility undoubtedly has policies set out in the employee handbook or other documents that require you to report suspected abuse or neglect to them. If you follow that policy, you will be legally protected from retaliation if your employer is irritated that you made the report.
What to Do if You are Reporting as a Health Professional
If you are a licensed health professional—such as an RN or LPN—you are legally required to report suspected abuse or neglect to the Ohio Director of Health. This obligation is usually filled by making your report to your Director of Nursing or to the CEO or another high ranking official in your organization. But, the law makes it your obligation to be sure that the abuse or neglect gets reported to the Ohio Director of Health. So, to protect your license, you should follow up and make sure your employer has, in fact, forwarded the report to the Ohio Director of Health in some form or fashion.
Be Logical When Reporting the Nursing Home Abuse
Here, it pays to follow common sense when deciding how to report suspected abuse or neglect. If you simply go to the new media, or post the suspected abuse or neglect on the internet, without reporting it to a person or entity that is in a position to immediately correct the problem, you may be risking the patient’s health and you probably won’t be protected by the statute.
If you report to your DON or another responsible person in your organization and they tell you to forget about it, or that they have taken care of it, and you in good faith do not believe it has been dealt with or corrected, or properly reported, you should certainly go to the Director of Health and make a report. You will be protected if your employer later disciplines you for doing so.
Caregivers often have close relationships with family members or “sponsors” of elderly residents, and it is natural to inform those people immediately if you suspect abuse or neglect. But again, common sense would tell you to also tell your supervisor or your DON—someone who is in a position within the organization to stop the problem. The family or sponsor of an abused resident certainly has a right to know, but so does your employer, who may be unaware of the problem until you disclose it.
Reporting Nursing Home Abuse for Non-Employees
Although I have been focusing on employee whistleblowers up to this point, the Ohio statute also protects non-employees, such as contractors, or persons hired by other organizations to provide services to nursing home residents. For example, employees of hospice care organizations who come into a nursing home to provide care to residents are also protected from being disciplined or fired if they report suspected abuse or neglect of the resident.
The protection also extends to persons who express the intention to make a whistleblowing report, even if they haven’t actually made one. So, if you tell your supervisor or DON, “I’m going to report this to the Ohio Director of Nursing,” and you are fired or demoted or transferred or otherwise disciplined before you have a chance to actually make the report, you are still protected by the statute.
Something to Remember About the Retaliation Whistleblower Statute
Remember that this anti-retaliation whistleblower statute does not protect you from being fired or disciplined for other, legitimate reasons. Just because you report suspected abuse or neglect does not mean you have protection against being fired for missing work, making serious mistakes, or other legitimate reasons. However, in reality, the employer will often try to come up with other, “legitimate” reasons to discipline you, when the real reason may be retaliation for reporting the abuse or neglect. If they create a contrived, bogus reason to discipline you after you’ve reported abuse or neglect, you should be able to prove that the bogus reason is either false, or so weak it can’t be the real reason, and that the real reason is your whistleblower report of suspected abuse or neglect.
The statute we have been discussing is Ohio Revised Code Section 3721.24. An Ohio Supreme Court case discussing these issues is Hulsmeyer v. Hospice of Southwest Ohio Inc., et al., 142 Ohio St.3d 236, 2014-Ohio-5511.
Finally, if you find yourself in a situation where you may have to report the suspected abuse of neglect of a resident, or in any other whistleblower situation, you are well-advised to contact a lawyer. The whistleblower laws in Ohio, Kentucky, and other states are complicated, and they vary by industry and type of employee. If you take a wrong step in reporting (or not reporting) whatever it is you want to report, you could lose your job and also lose any protection the law might otherwise give you.
