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

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 Answer

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.