South Carolina Nursing Home Blog

South Carolina Nursing Home Blog

Nursing Home Information & Litigation

Contact CMS about Arbitration

Posted in Advocacy, Arbitration

The Des Moines Register had the below editorial on their website.

In January 2013, 80-year-old Esther Brown was found lying in her bed at a Pennsylvania nursing home with blood covering her hands and her pillowcase.

A nurse’s aide at the home reported that one of her co-workers had hit Esther and then had thrown a can of shaving cream in her face, striking the elderly woman above the eye. The incident was reported to the police, and Esther died several months later.

Her family sued the nursing home, alleging negligence and battery. But before the case could proceed to trial, the judge had to rule on whether the family had the right to file such a lawsuit. When Esther was admitted to the facility in 2011, she and her daughter signed a contract that required her, and her family, to submit any quality-of-care complaints to an arbitrator rather than to a judge or jury.

Late last year, Judge Jeffrey Sprecher upheld the family’s right to sue, finding the arbitration agreement “unconscionable” because it was presented to Brown at emotionally difficult time; consisted of long, confusing passages; improperly portrayed the deal as beneficial to all parties; and included a confidentiality provision that Sprecher said was “designed to bury all proof of bad things that may be alleged to occur in a nursing home.”

The sad reality is that these types of arbitration agreements are fairly common now among nursing homes, and they are often upheld by the courts. Prospective residents, who may be in the midst of a health care crisis, are asked to forfeit their right to sue as a condition of admission. As the judge in the Esther Brown case ruled, these binding arbitration agreements are sometimes “forced down the throat” of residents.

As Sprecher pointed out, these agreements also attempt to “inject fear in the patient by suggesting that a court action takes so much longer than arbitration, so that unless you select arbitration, the patient may die before his court case could be finished.”

At first glance, arbitration might sound like a reasonable, effective way to address complaints without resorting to litigation. The problem is that through litigation, complainants have the ability to use the discovery process to procure documents that speak to patterns of abuse or neglect. They can also subpoena witnesses for depositions, and secure sworn testimony as to the facts of the case. And all of that is handled through a public proceeding before a judge or a jury of one’s peers.

Many of the arbitration agreements restrict a complainant’s access to records, as well as the number of depositions and witnesses. Some place limits on how much a party can recover in damages.

The federal government could easily bar these types of mandatory agreements as a condition of a home’s participation in the Medicaid program — but it has repeatedly refused to do so. In fact, the federal Centers for Medicare and Medicaid Services is considering major changes in nursing home regulations, but under the proposed new rules, homes will only be required to “explain” arbitration agreements to residents.

Of course, many individuals are placed in nursing homes precisely because their cognitive abilities are greatly diminished. How many of them are in a position to understand the legal rights they are forfeiting by signing these agreements?

Fortunately, CMS says it is still considering whether it should simply prohibit binding arbitration agreements altogether, noting that residents who depend on nursing homes for urgently needed care may feel pressured to sign the contracts even when they’re not required as a condition of admission.

It’s time for CMS to ban arbitration agreements in nursing homes. If care facilities feel that’s an intrusion on their right to dictate the terms of admission, they’re free to bow out of the Medicaid program and accept only private-pay residents.

But as long as public money is paying for the care provided in these homes, the regulation of these facilities should be designed to protect the public and not to appease the industry.

Voice your opinion

CMS is accepting public comments through Sept. 14 on the proposed new nursing home regulations. To voice your opinion, go to regulations.gov, and enter “CMS-3260-P,” with the quotation marks, in the search engine. That will direct you to a link to the proposed regulations, labeled as Medicare and Medicaid Programs: Reform of Requirements for Long-Term Care Facilities. Through that link, you can submit your written comments.

Arrest for Neglect

Posted in Abuse and Neglect, Staffing, Trial themes

NewsOK had an article on a CNA at Warr Acres Nursing Home arrested for neglect.  Her defense:  No one checked her work or cared if she got it done.  This is often what happens in nursing homes that are not properly staffed.  The caregivers are overworked, underpaid, and suffer burnout.  This leads to care not being provided and the residents suffer.

Kendra Leann Scott has been charged with neglect by caretaker, accused of ignoring the needs of a bed-bound resident who had soiled her clothing.  She told another caregiver she failed to clean up the patient because she knew no one cared or would check on her, according to a news release issued by Oklahoma Attorney General Scott Pruitt.

Scott worked the day shift. A night shift worker reported finding the neglected resident in bed with clothing and bedding soiled with feces and urine that appeared to have been there a long time.

 

Guilty Plea in Abuse Charge

Posted in Abuse and Neglect, Staffing

WKRG reported the guilty plea of Elsie M. Sawyer, a nursing home employee at Crowne Health Care, for abuse of a protected person, a Class C felony.  She was sentenced to three years, which was suspended, placed on three years of probation and ordered to complete an anger management class.  In addition, she is barred from working in a care facility that receives Medicaid or public health funding.

When Sawyer was employed as a certified nursing assistant at Crowne Health Care of Mobile, she was observed striking a resident and causing injury to the face and nose.

“Those who work in nursing homes hold a serious position of trust that they will care for those who are vulnerable and in need of protection,” said Attorney General Strange. “For someone to instead abuse those who are helpless will not be tolerated.  I am pleased that this defendant has been held to account for her crime and that she will be barred from a position to abuse anyone else.”

 

Therapy Generates Profit

Posted in Advocacy, Medicare, Trial themes

The Wall Street Journal had an article on how profitable therapy is for nursing homes and how they exploit the regulations to make the most money.  Medicare pays nursing homes a daily rate for a person’s stay based largely on the duration of therapy.  Medicare pays for up to 100 days of nursing-home care following hospitalization; patients pay for a portion of that care in some cases.   Medicare’s own rules can provide financial incentives for institutions to say they give high levels of rehabilitative therapy.  More than two dozen current and former therapists, rehabilitation directors and others who have treated nursing-home patients in 17 states said in Journal interviews that managers often pressure caregivers to reach the 720-minute threshold.

Patients getting ultrahigh therapy—at least 720 minutes a week—generate some of nursing homes’ biggest payments from the taxpayer-funded program. Medicare’s ultrahigh rate averaged about $560 a day in 2013, a Wall Street Journal analysis of billing records found. The average was $445 a day for “very high” therapy of 500 to 719 minutes and $325 for the “low” category, 45 to 149 minutes.

Medicare adopted the payment rules in 1998 replacing its system of paying based on costs. Since then, nursing homes have billed for increasing therapy levels, a Journal analysis of their federal financial reports found. In 2002, nursing homes gave ultrahigh therapy to patients on about 7% of days they billed to Medicare; in 2013, they billed 54% as ultrahigh.  Medicare paid nursing homes about $28 billion in 2013, 10% more than it would have paid if the proportion of days billed at each therapy level had been the same as in 2008 and 24% more than if the proportions had mirrored 2002 billing patterns, according to a Journal analysis of payments.

Such therapy is delivered even when patients are unresponsive, aren’t likely to benefit or have declined such services, at times distressing vulnerable patients.  

 

Police Investigating Allegations of Abuse and Neglect

Posted in Abuse and Neglect, Advocacy

WNEP reported a disturbing story about abuse and neglect at Watsontown Health and Rehabilitation nursing home.  Police are investigating claims of abuse which allegedly happened between a nursing home employee and resident.  Watsontown Health and Rehabilitation Center is home to around 125 vulnerable adults. One of those residents is a 76-year-old woman who was severely dehydrated, had a severe bladder infection and a sprained arm.

For her safety, the resident was moved to another care facility. Two employees were interviewed by police as part of the investigation. Both of those staff members are still employed.

 

Yelp Partners with ProPublica

Posted in Advocacy, Choosing a nursing home

HealthitOutcomes reported an interesting partnership between Yelp and ProPublica that is bringing medical information to the review site. Yelp will provide statistics for 4,600 hospitals, 15,000 nursing homes, and 6,300 dialysis clinics across the country, compiled by ProPublica from their own data and that of the Centers for Medicare and Medicaid Services (CMS). Updates will be provided quarterly.

As performance ratings and efficiency become increasingly important in healthcare, particularly with the Centers for Medicare & Medicaid Services (CMS) tying reimbursements to HCAHPS scores, public review sites are popping up to help consumers make the best decisions about their healthcare providers.

“Now the millions of consumers who use Yelp to find and evaluate everything from restaurants to retail will have even more information at their fingertips when they are in the midst of the most critical life decisions, like which hospital to choose for a sick child or which nursing home will provide the best care for aging parents,” Yelp CEO Jeremy Stoppelman said in a blog post.

The healthcare statistics will include:

  • Quality of doctor communication compared to state average in hospitals.
  • Whether hospital rooms are quiet at night compared to state average.
  • Emergency room wait times for hospitals.
  • Number of beds in nursing homes, as well as any fines paid out over the past three years and the number of serious deficiencies reported.
  • The number of dialysis stations in a particular clinic, and the rate of hospital readmission versus standard, and the rate of patient survival compared to the standard.

 

Signature Settles Fraud Case

Posted in Advocacy, Trial themes

Sioux City Journal reported that Signature Care Centers, a for-profit chain of nursing homes, agreed to pay more than $415,000 to resolve allegations of false reports for Medicaid payments for the 2008 and 2010 fiscal years.

“This agreement signifies both the importance our office places on ensuring that all providers play by the rules and our office’s dedication to ensuring no federal money is misspent,” said Kevin Techau, U.S. Attorney for the Northern District of Iowa, in a press release

Arbitration: “Not a good deal”

Posted in Arbitration

Modern Healthcare had a great article on the use of mandatory arbitration clauses in nursing home admission paperwork.  Families frustrated by the lack of quality care their loved ones sometimes receive at homes say they feel pressured to sign them and don’t even understand what they’re agreeing to. They don’t realize that awards in arbitration in nursing home cases are much lower than a jury verdict, and they can’t appeal an arbitrator’s arbitrary decisions on discovery and admissibility of evidence.
Claims sent to in arbitration have been a good deal for nursing homes.   They are able to neglect and abuse residents without any accountability.  Arbitration awards cost about 16% less on average than claims that do not involve arbitration, according to insurance broker Aon Global Risk Consulting.

Fortunately, a new CMS proposed rule aims to put an end to the long-running feud over the use of binding arbitration agreements in nursing homes. The rule would require nursing homes to explain binding arbitration agreements to patients and families before they sign them. Something they should have been doing all along.  What constitute adequate explanation of binding arbitration agreements?

Michael Thamer, an attorney in Callahan, Calif., who works on elder abuse cases, said nursing homes insert the agreements into the general admissions paperwork. “Buried in there is the arbitration agreement, and I would say the average person looks at it and thinks it’s all part of the admissions packet,” Thamer said. “That’s kind of how they game it.”

The rule would prohibit nursing homes from requiring residents or their families to sign the agreements as a condition of admission. The Obama administration’s proposal follows failed bills in Congress to invalidate the agreements in nursing homes and a CMS memo issued more than a decade ago that argued such agreements, when required as conditions of care, might compromise residents’ quality of care and violate federal requirements.

CMS should ban pre-dispute arbitration agreements altogether.  Stressed families shouldn’t be asked to sign away their constitutional right to a jury trial just to receive nursing care.  “It’s kind of like putting lipstick on a pig,” said Robyn Grant, director of public policy and advocacy for the National Consumer Voice for Quality Long Term Care. “With all due respect to pigs, it’s still a pig.”
Many plaintiffs’ lawyers and others say they don’t oppose arbitration for all nursing home disputes. But they don’t believe patients should be asked to sign arbitration agreements before an incident has occurred. “There are times when it might be appropriate and the right way to go for a consumer,” said Grant of National Consumer Voice for Quality Long Term Care. “But to make that decision, (the patient and family) need to know the facts and situation around what happens and (they) need to know the risks and benefits.”
Martin Kardon, a partner at Kanter, Bernstein and Kardon in Philadelphia and chair of the nursing home litigation group at the American Association for Justice, said offering the agreements at admission is “predatory.” “If it’s such a great deal why do you have to get people to sign the day they’re admitting their mother to a nursing home and under stress and afraid—probably one of the lowest moments of their lives?” Kardon said. “The answer is it’s not a great deal.”

“Beyond Reprehensible”

Posted in Abuse and Neglect, Staffing

The Lowell Sun reported the arrest and prosecution of two nurses aides accused of posting humiliating videos on social media of vulnerable clients at the Wingate at Belvidere nursing home. Sabrina Costa and Kala Shaniece Lopez were arrested after the videos surfaced on Snapchat.  Videos show Wingate patients, ages 75 to 99, being disrespected and humiliated.  The judge characterized their acts as “beyond reprehensible.”

One video shows an 86-year-old patient sitting on a commode being asked by one of the suspects about her sex life and if she smoked marijuana. Another video shows the same patient sleeping soundly when one of the suspects yells in her ear, abruptly waking her up. A third video shows a 75-year-old patient making noises to show her teeth with the caption under the video, “Chuckie’s Bride.”

The women pleaded not guilty to three counts each of permitting abuse on an elder or disabled person. Costa is also charged with assault and battery on someone over 60 or disabled.  Police searched Lopez’s phone and found a video of Costa allegedly getting into bed with a 99-year-old patient, telling the female patient she loves her and hugging her. The video shows the patient telling Costa to leave her alone, police said.

 

Inmates Moving in with Grandma?

Posted in Advocacy, Trial themes

WBNS-10TV reported on the controversial decision to save money by moving prison inmates into nursing home facilities. With aging inmates come medical issues and climbing costs to pay for them. Since 2012, the state spent $33 million in health care just for inmates age 50 and older.  Money to pay for canes, walkers, wheelchairs and medication was all paid for with tax dollars.

Moving inmates into nursing homes isn’t new but this proposal would broaden the number of inmates who qualify.  Since 1994, Ohio has allowed for compassionate release of dying inmates into nursing homes or hospice. This proposal would extend the law to inmates serving mandatory sentences for crimes such as drug possession, sex crimes, murder, and rape among others.

By shifting inmates from prison to nursing homes, the state said Medicaid picks up the tab, instead of tax dollars. Isn’t Medicaid tax dollars too?  Ohio’s prison population is expected to grow 12 percent among those 50 years old or older. That’s more than 18,000 inmates.