Is it legal to have my father live with an HIV+ person in a nursing home?

9 answers | Last updated: Oct 20, 2016
A fellow caregiver asked...

I discovered yesterday that a new resident in Dad's group home is HIV positive, but apparently I am not supposed to find out. However this new resident is 44 years old, requires police intervention more than once a week, and has a criminal record. I picked up his police records from the police department and searched his court proceedings on line. He is both an alcoholic and drug abuser. He has been legally deemed incompetent by the courts. He was previously with the same owner, only in her behavioral health home, which had specialized care givers and required 24 hours awake staff. Due to her strategically foreclosing on her homes and then repurchasing them back through her sister, that home no longer qualified for long term financial assistance.

Dad is 85 years old and has Alzheimer's disease. His butt is usually red and has open cracks and sores from sitting in a wheelchair for 12 hours a day. He is not ambulatory. He also always has open skin tears on his hands and arm. Could Dad get AIDS from sitting on the toilet with open sores where this man just urinated? Could he become infected through an open skin tear?

I need both medical & legal advice. What is the disclosure law in AZ regarding notifying a legal guardian of the potential danger of moving in a convicted felon, who presents with mental disturbances and is HIV positive into the same home with incapacitated residents? What is the home's responsibility to me for disclosre as a legal guardian?

The owner is furious with me for obtaining "her patient's" court and police records, which are public informatin. She informed her care givers, that this resident who is on AZ long term care, pays twice the amount of money as a behavioral resident as does her aged residents, that it is his money (from the stte)that pays their wages.

What are Dad's legal rights about being exposed to this kind of danger, and what are my rights and obligations as a legal guardian? I need some legal advice, and am too broke after 5 years and over a million dollars of private funds to pay for a private attorney. Is there anywhere I can go? I called the Department of Health, and was told this man had a right to be in the same home as my father, that he needed protection too. I have called the ombudsman, and they came to the home, but have done nothing. How do I find out AZ laws regarding this type of potentially volitle situation?


Expert Answers

Carolyn Rosenblatt, R.N. and Attorney is the author of author of The Boomer's Guide to Aging Parents. She has over 40 years of combined experience in her two professions. As a nurse, she has extensive experience with geriatrics, chronic illness, pain management, dementias, disability, family dynamics, and death and dying. As a trial attorney, she advocated for for the rights of injured individuals and neglected elders. She is also co-founder of AgingParents.com.

Your question is complex, and in part asks about exposure to disease in a nursing home, or group home. I am unclear what kind of home your father is in, but will assume that it is a skilled nursing facility. For this kind of facility, there are rules from both the state and federal government which must be followed by the facility. Generally, the owner of the home is required to provide a safe environment for all residents if it takes Medicaid or Medicare payment. There are few "behavioral" facilities for convicted criminals who are incompetent, and this is a problem is our society. However, you are not powerless to do something to protect your father.

I cannot give you specific advice about the laws in Arizona, but you need to seek legal advice to answer that part of your question. If dad is low income, he qualifies for legal aid, low cost services for elders, or reduced fee help from your local Bar Assn. in your county. AARP also has a list of elder law attorneys on their lawyer panel, and they agree to work for a reduced fee. Get going to find out how to get low fee or no fee advice on what is permissible in AZ. You can act as his representative and find out the legal information you require. Disclosure and proximity to the possibly dangerous new resident is the issue to ask about.

I suggest that you get your father to a different home as soon as you can. You will need to become the safeguardian of your dad until the HIV positive person can be kept away from him completely. Yes, it is possible to contract HIV from any HIV positive individual through body fluids. Blood and mucous membrane contact are the most common ways the virus is transmitted. The exposure can be from any opening in the skin. Direct contact with infected body fluids or mucous membrane in some way is the means of HIV transmission. Government websites, such as Centers for Disease Control contain detailed information on transmission. Here's a link to an article on HIV transmission in healthcare settings from that site. http://www.cdc.gov/mmwr/preview/mmwrhtml/00023587.htm

It sounds as if the owner of the facility is more motivated by money than by the consideration of your dad's safety there. In that case, she is unlikely to change. Regardless of disclosure, which you now have gotten for yourself, she is not likely to protect your dad from the HIV positive, incompetent resident. Although bringing the law to bear on her could help and might result in transfer of the HIV infected resident eventually, I don't think it's wise to wait and see if that can happen. A more practical approach is to begin immediately to look for another placement for your father.

If he is suffering from sores in his skin and sits in a wheelchair all day, it is possible, though not certain, that you may have a case for elder neglect against the facility owners. That is different from the possible violation of licensing regulations of AZ affecting nursing homes. Cases involving elder neglect are often handled by private attorneys on a contingent fee basis. This means that you don't pay an hourly rate for fees, but instead, a percentage of the recovery obtained through a lawsuit, plus additional case costs to the attorney who does the work. As I have personally handled such cases, I believe it is worth exploring this possibility. Bedsores, open cracks in the skin and blatant exposure of a vulnerable resident to an HIV infected, incompetent alcoholic drug abuser could be grounds for a civil lawsuit. Take photos. Document everything you can with written records of whom you spoke to and what they said and when. These things can help an attorney decide whether or not to accept a case.

To find an attorney who is competent to handle these difficult cases, be sure to do your research. Experience in AZ, with elder neglect and abuse cases is essential. Ask friends and family for a referral to an attorney who deals with elder law matters. Many attorneys who don't handle specialty areas of the law know other competent attorneys who do. Ask specifically for what you want. Look the attorney up online, check the state bar record (it's public) to be sure there is no record of prior discipline, and ask for references.

Sometimes, legal action can stop a dangerous situation and bring attention to the plight of someone like your dad, who is currently at the mercy of the facility owner. It is very distressing to hear about this, and I hope that you will get going immediately to get your dad out of there and see if a legal, civil remedy exists. Above all, I encourage you to continue to be his vigorous advocate. Bless you for your efforts and keep working at a satisfactory solution.


Community Answers

Jenaette answered...

Thank you for your expert opinion. I am currently pursuing an alternative placement. I received a call from Dad's care givers, telling me that the owner is furious for me pulling this resident's police records and court docuements. She provided a "book" this weekend in which the care givers were instructed to "document" me, stating that she wants every word, my beheavior, when I come, when I go, what I bring, and what I take out documented, adding that if "they go down, they are taking me and him with them." They are instructed to make up anything that could be damaging to me. They have refused and she has now threatened their jobs and security.

It looks like the owner is fully aware of violating both state and federal laws including rent scamming and mortgage fruad. I also checked the tax records for the properties she owns and operates as assisted living homes. Multiple properties appear to be involved in real estate fraud and rent scamming, letting the properties strategically go into foreclosure and then repurchasing them through the sister via a short sale process, at $.50 on the dollar, with the elderly tenants in place.

As a Real Estate Broker I know this is illegal. Short sales are for single family residences that are owner occupied. It looks like I have uncovered a can of worms and have now placed the care givers, Dad and me, all at risk.

i have also been taking in food this past month, after visiting at dinner time and finding the residents served Bologna sandwiches, a cheese sandwich, and a "butter" sandwich with a glass of water for dinner. I took photos of the refrigerator, showing only water, bread and large containers of condiments that appeared to have come from the food bank. This is all over my head, but it seems strange that a business that grosses over 2 mil a year would qualify for food from the food bank for it's residents. She is not paying a mortgage, the food is from the food bank, and she is paying her staff below minimum wages. It seems there are numerous state and federal violations going on simultaniously.

I am not comfortable that any of us are safe, if her entire empire is crumbling around her, and she feels I am the one who opened the door that was hiding all those little secrets.

I am in fear for mine, my Father's and the care givers safety. I have called the state and they are investigating, but the owner is calling threatening me and the care giver while on duty, at the home. We are all fearful of what this woman may do. The owner is an immigrant.

Can I legally record her calls and have the care givers record her threats to them?


A fellow caregiver answered...

Get those pictures taken asap, get your dad out, and call a local TV station or newpaper's investigative reporter as soon as you secure an attorney and file suit. In so many ways, the owner of the 'care' facility is violating laws civil and humane. Your father needs legal, medical and financial recourse; if you do this solo, it will likely be hushed up. Who knows what other patients are dealing with equally attrocious conditions? STate needs to shut her down, and since she makes business decisions driven by money, hit her where it hurts.


Deafmack answered...

I suggest you move your dad as soon as possible to another facility. The fact that he has sores from sitting in a wheelchair all day tells me he is not even receiving proper care. The legal issues are another reason to move your father. This owner/director doesn't sound like she is one that should not be operating this kind of business. At the same time seek advice from an attorney experienced in elder law to help you in the process. The law is pretty complicated and you want to have all of your ducks in a row so to speak.


A fellow caregiver answered...

Get your father out of there immediately if not sooner!!!


Miska answered...

Please call Adult Protective Services as soon as you finishes reading this note. Your father is being neglected and possibly physically abused. I say this because of the sores which has been allowed to form on his body. Obviously, the caregivers at you father's facility are not taking the time to keep him off pressure areas on his body and allowing him to sit all day in a wheel chair. I would be concern that the owner is angry at you for researching another resident's past, only because the owner may neglect or allow other mistreatment toward your father. It is really time to get your dad out of that facility. You have received sound advive from the other respondents please be receptive to it. Good luck to you and your father.


Clc answered...

IN order to be admissible, you would need a wiretap authorization. However, if there is fraud and physical injury, your state's attorney's office would work with policy or investigators. You can record it, but it couldn't be used in court. At some point, you may need a restraining order if the threats are real.

I would suggest you stop using blogs and start using authorities with boots on the ground in your state who can begin legal and potentially criminal action. You're wasting precious time chit chatting with us.


Chaplain answered...

This does not sound like the right facility for your father. The risk of HIV to your Father is actually very small. I'm a RN and former Director of Nursing of a nursing home. I also worked as an investigator of abuse and neglect in nursing homes for 10 years. Infection would likely require the HIV patient to bleed on your father and the blood come in contact with an pen would of your father;s. The toilet scenario is highly unlikely unless your father sat on the toilet immediately after the HIV patient and the HIV patient had urinated on the toilet seat. On the other hand, the direct care staff are at high risk if they aren't properly trained. Your father's bottom should not be red. He should have a high quality flotation pad to minimize his risk of pressure sores. If his bottom is often red it sounds like staff are not keeping him dry enough. Being left in a wet diaper will cause redness and ulceration. Your father should be in a nursing home if he isn't. Assisted living centers are unlikely to provide round the clock care that he needs. He needs to be taught and encouraged to shift his position every 15 minutes. Ask to see his care plan. It should address the reddened areas on his bottom and the plan should say how staff intend to heal the area. It can be done even if he is up 12 hours a day. He also needs extra C and D. Ideally, he needs to be outside in the light for 15 minutes daily ( but not in a hot sun).


Swampfox answered...

A very good lawer is needed asap! first I would recomend getting your father out immediately! Talk with an attorney! I can guess at answers,but an attorney can give you sound advice,and let you know the law! Don't guess with your loved ones life! I can,and will pray for you and all concerned in this matter!!!