South Carolina Nursing Home Blog

South Carolina Nursing Home Blog

Nursing Home Information & Litigation

Sava’s Deal with NorthStar Healthcare

Posted in Tort Reform, Trial themes

NorthStar Healthcare Income, Inc. (NorthStar Healthcare) announced that it invested more than $170.0 million in two healthcare real estate transactions, including one assisted living portfolio acquisition and one mezzanine loan backed by a portfolio of skilled nursing and assisted living facilities.

NorthStar Healthcare acquired a 570-unit portfolio of senior housing assets for $125.0 million, plus closing costs. The properties are located in Long Island, NY and consist of four assisted living facilities totaling 404,000 square feet.

  • The facilities are 100 percent leased to Arcadia Management, Inc. (Arcadia), which has managed the properties since 2005. Each lease contains annual rent escalations.
  • The properties are located in a market with high barriers to entry, given that New York is a Certificate of Need state and that zoning restrictions limit overbuilding.
  • The portfolio’s overall resident occupancy was 89 percent as of July 31, 2014.
  • The portfolio is currently unlevered and NorthStar Healthcare intends to secure attractive financing for the investment.

Additionally, NorthStar Healthcare closed an investment in a $45.0 million mezzanine loan secured by a pledge of an ownership interest in a portfolio of 16 healthcare properties (14 skilled nursing facilities and two assisted living facilities) located in nine states. Affiliates of Sava Senior Care (Sava), the nation’s sixth largest operator of skilled nursing facilities, will continue to manage the facilities. Including this transaction, NorthStar Healthcare has closed two mezzanine loans totaling $120.0 million with the borrower and operator, following an initial $75.0 million loan that closed in June 2014.

NorthStar Healthcare’s portfolio consists of 19 investments with an aggregate total cost of $491.2 million, including 15 equity investments with an aggregate total cost of $345.3 million and four debt investments with an aggregate principal amount of $145.9 million, as of October 7, 2014.  NorthStar Healthcare is a public, non-traded real estate investment trust (REIT) sponsored by NorthStar Asset Management Group Inc. NorthStar Healthcare was formed to originate, acquire and asset manage a diversified portfolio of equity and debt investments in the healthcare real estate sector with a focus on the mid-acuity senior housing sector, which we define as assisted living, memory care, skilled nursing and independent living facilities that have an emphasis on private-pay patients.

 

Safety v. Privacy

Posted in Abuse and Neglect, Advocacy

Over the years, Illinois Attorney General Lisa Madigan has consistently heard “horror stories” about the abuse or neglect of nursing home residents.  Madigan’s office is drafting legislation that would allow Illinois nursing home residents and their families to place cameras in their rooms to help protect them.  Madigan said that putting a camera in the room is an easy and inexpensive way to monitor a senior’s care. She noted that the Illinois Department of Public Health gets nearly 19,000 calls a year about suspected abuse or neglect in nursing homes, and responds to more than 5,000 complaints.  About 1.5 million people reside in nearly 16,000 nursing homes nationwide at any given time.

“Residents and family members should have the option, for their own peace of mind, to monitor what is taking place,” said Madigan. “If something goes wrong, you can see what actually happened.”  State attorneys general in Ohio and New York also have used undercover video surveillance in residents’ rooms (with family members’ permission) to uncover abuse or neglect, resulting in arrests or indictments.

Illinois would join at least four other states — New Mexico, Oklahoma, Texas and Washington — that have laws or regulations allowing residents to maintain cameras in their rooms. In Maryland, cameras can be placed in a resident’s room, but only if the facility permits them, according to state guidelines.

While no one keeps data on the total number of allegations of abuse or neglect in nursing homes, an August report by the U.S. Department of Health and Human Services Inspector General’s Office found that 85 percent of nursing facilities reported at least one such allegation to the agency in 2012. It estimated that about 60,000 allegations involved staffers abusing or neglecting residents.

Since 2000, at least a dozen states have considered some type of law or regulation allowing cameras in nursing home rooms to help detect and deter abuse and neglect, according to Amity Overall-Laib, a manager at The Consumer Voice, a national advocacy organization that promotes quality long-term care. However, industry lobbyists have successfully fought numerous legislative proposals permitting electronic surveillance.

Overall-Laib said her group supports a resident’s right to decide whether to use audio or visual electronic technology. But it also believes that precautions must be taken. Among them: the resident’s roommate should also consent and not be visible on camera; recordings should be the property of the resident or his representative; and family members who make a decision on behalf of an incapacitated resident should carefully weigh his right to privacy and autonomy before installing the equipment.

“Putting in cameras is definitely an important issue,” said Overall-Laib. “As long as the areas of consent and privacy are addressed, it should be up to the resident to choose one or refuse one. If the resident can’t provide consent, if they have a guardian or a legal representative, then the state needs to have a very clearly defined process about consent.”

In the last several months, Madigan said the issue hit home with her. An elderly friend who had broken his hip and been sent to a rehabilitation facility told her how poorly he had been treated there. Another friend complained about how her mother, who had suffered a stroke, had gotten subpar care in a nursing home.

See more at SWTimes.

 

Nursing Home Resident Chokes on Meatball

Posted in Dementia Care, Nutrition

A nursing home in Danbury, Conn. was fined only $1,040 by the state’s Department of Public Health after one of its residents died from choking on a meatball. The incident occurred when a licensed practical nurse left the resident’s evening meal tray at the individual’s bedside and left the room for the medication cart.  The resident was known to have swallowing problems and at risk for choking.  When the nurse returned, the resident was unresponsive. Records show that the tray was covered and that there was no visible food in the resident’s mouth, however.  The staff did not properly assess or care plan for the issue as the vulnerable resident was on a regular diet with cut up meat and thin liquids with no supervision.

The resident was taken to a hospital where the meatball was removed. The individual later died as a result of aspiration leading to hypoxic encephalopathy, which is a lack of oxygen to the brain.

The nursing home’s dietary director told state investigators that the kitchen staff was not responsible for ensuring that food was cut up for residents who have difficulty swallowing. Records show, however, that the meatballs served with the spaghetti that night were three-quarters to 1 inch in size and were considered appropriate for a soft diet.

This incident is not the only one to involve a resident choking on food, as state officials in Connecticut fined at least five nursing homes when their residents experienced similar cases. In some cases, the Department of Public Health found that negligence was to blame.  See article.

 

Music Therapy for Dementia Patients

Posted in Dementia Care

As a part of the Wisconsin Music and Memory Initiative, nursing homes in the state are using iPods to provide music therapy for their residents. The program, designed by the Wisconsin Department of Health Services, is geared toward residents with Alzheimer’s disease or dementia and is meant to improve their moods and their interactions with other residents, staff, and family members. As a part of the initiative, which has 100 participating nursing homes, each facility receives 15 iPods to play personalized playlists filled with music familiar to the residents.

The Hillview Health Center in La Crosse, Wis. has experienced great success by the initiative and has even bought additional iPods and set up programs through which used iPods can be donated to the nursing home for its residents. Dorothy Schwanbeck, an 87-year-old resident at Hillview participating in the program, has a playlist that contains songs by Judy Garland and from “The Sound of Music.” Her daughter, Mary Carskadon said that her mother smiles when she hears the music and is more relaxed while listening.

In addition to relaxing tense residents, the nursing home employees have also said that the therapy will be able to lessen the need for anti-psychotic and anti-anxiety medications for the residents. Residents participating in the program are also said to be more upbeat and interactive with the people around them. There are plans to expand the program to another 135 of the state’s 397 nursing homes, seeing as almost 16,000 of the 29,000 residents of the facilities have been diagnosed with Alzheimer’s disease or dementia, according to the Wisconsin Department of Health Services.  See article at Lacrosse Tribune.

 

Short-staffing Shortchanges Staff

Posted in Staffing

A law setting mandatory nurse-to-patient staffing ratios has reduced the number of workplace injuries for registered nurses and licensed practical nurses in California, according to recently published findings.  Full findings have been published in the online version of the International Archives of Occupational and Environmental Health.

The state law enacted in 2004 established minimum staffing ratios for acute care hospitals. It can be credited with a 32% average yearly reduction in registered nurse illnesses and injuries, according to investigators at the University of California, Davis. There also have been a third fewer injuries for licensed practical nurses. The increased staffing could prevent injuries in a number of ways. For instance, having multiple people to transfer a patient could reduce back and shoulder injuries.

The findings stemmed from an analysis of injury and illness rates tracked by the U.S. Bureau of Labor Statistics. The BLS routinely identifies nursing as one of the most dangerous professions in the country, and nursing homes as especially hazardous settings due to the propensity for staff to lift residents without mechanical assistance.  Leigh and his colleagues believe their research could support similar staffing laws in other states. Many providers have expressed wariness about these laws, due to increased costs and the inconclusive findings regarding patient outcomes.

 

End of Life Care

Posted in Abuse and Neglect, Advocacy

The NY Times had a fantastic article about the difficulty in fulfilling a loved one’s final wish to die at home.  Maureen Stefanides was the daughter of Joseph Andrey, a 91 one year old resident of a nursing home.  Craning his neck, he sought the eyes of his daughter, who had promised to get him out of this place. “I want to go home, to my books and my music,” he said, his voice whispery but intense. He was gaunt now, warped like a weathered plank, perhaps by late effects of an old stroke, certainly by muscle atrophy and bad circulation in his legs.  Her father had been discharged by a hospital to a nursing home, supposedly for rehabilitation, so many times that even she had lost count. The stays, long or short, had only left him weaker, harder to care for at home with a shrinking allotment of help from aides and more prone to the infections that sent him back to the hospital.

Now she was determined to fulfill her father’s dearest wish, the wish so common among frail, elderly people: to die at home.But it seemed as if all the forces of the health care system were against her — hospitals, nursing homes, home health agencies, insurance companies, and the shifting crosscurrents of public health care spending.

She had fiercely opposed his being discharged to anywhere but home, a small walk-up apartment in Manhattan that her parents shared for half a century before her mother’s death. Records would show that her father’s case let the nursing home collect $682.48 a day from Medicare, about five times the cost of a day of home care.  Hospitals, eager to clear beds, increasingly sent patients to nursing homes. The nursing homes were often too short-staffed to reliably change diapers but still drew premium Medicare rates, ordering hours of physical therapy and other treatment that studies showed was often useless or harmful.

“It’s a terrible situation they’ve put us in,” Ms. Stefanides said in an agitated phone message left on this reporter’s voice mail. “My father wants to die at home, he knows he’s dying. And here I am proving I’m power of attorney, that I’m guardian, and it means nothing, it falls on deaf ears.”

While Joseph Andrey’s daughter battled the health care system, a national panel appointed by the federally funded Institute of Medicine was preparing a sweeping critique of how the system handles just such cases. The report, “Dying in America,” released last month, calls for a fundamental overhaul of the country’s end-of-life care.

For most people, death does not come suddenly, the report points out. With 48 times as many people reaching 85 than a century ago, and triple the number who turn 65, the likely course of death is long and unpredictable. In the new demographic reality, the immediate family is older, too, often literally unable to do the heavy lifting for the long haul.

“We have these frail older people moving about in the medical-industrial complex that we’ve constructed,” Dr. Teno said. “It’s all about profit margins. It’s not about caring for people.”  Many geriatric experts say that if the wasteful medical spending on this stage of life could be redirected, it could pay for all the social supports and services actually needed by today’s fragile elders and their families. Instead, public money has been shuffled in the same system, benefiting health care businesses but not necessarily patients.

A prime example is the abuse of short-term rehabilitation in nursing homes, improper charges that cost the public more than $1.5 billion a year, federal inspectors for the Department of Health and Human Services reported in 2012. Medicare will pay premium rates for up to 100 days of services in a nursing home to rehabilitate patients. While such efforts can be beneficial, government investigations and lawsuits document a pattern of excessive or fraudulent orders for such services, often just before death.

A nursing home is the only place to find coverage for 24-hour care. But the care itself often falls short. In an analysis this year, federal inspectors found one in three Medicare patients who went to a nursing home from a hospital suffered harm, including preventable infections and medication errors.  Other national research confirms that pressure sores, falls and malnutritionare endemic in many nursing homes, and strongly linked to inadequate staffing. A 1987 law required enough staff to prevent such harms, but states’ enforcement has been weak in the face of a hugely profitable, politically powerful nursing home industry.

On arrival May 22 last year, Mr. Andrey was “alert and verbal,” with a good appetite, clinical notes said. Less than a week later, he was eating only half his food. On Day 12, he was found on the floor: He had fallen from bed, hurting his knee.  By Day 14, when Medicare had spent nearly $10,000 on his care, a pressure sore was eroding the flesh of his right heel. Despite treatment, ulcers later covered his left buttock and feet. On some days he went hungry, he told his daughter. Rushed workers left his food tray on the air-conditioner, where he could not reach it. Several times, he fell out of bed trying.  When physical therapy ended, the wounds became another reason for the institution to extend his stay, now costing Medicare $585.49 a day.  His system, likely colonized by bacteria acquired in health care institutions, was breaking down. Demented, contracted, hurting — he had no quality of life, doctors said, urging hospice.

But as the hospital’s own social workers had explained, hospice benefits from Medicare came with a catch: Her father would lose all Medicaid home care. In home hospice, that would leave huge gaps, unless she could tend to him around the clock. The alternative was hospice in a nursing home.  As she and her husband took turns at his side, Ms. Stefanides’s father lived on — one day, two days. Death came the third morning, before she arrived, on Feb. 1 of this year, three weeks before his 92nd birthday.  The funeral home director told her the deep pressure ulcers on her father’s body were the worst he had ever seen. The records she obtained showed that in the last year of his life, his care cost at least a million dollars.

“He didn’t die in his bed, and that’s what he wanted,” she said. “I still feel that I let him down.”

Texas Tort Reform Travesty

Posted in Tort Reform

Houstonia Magazine had an interesting article about Texas tort reform.  In 2008, Stephen DiLeo, his wife Cassy, and the couple’s two sons, Michael and Jonathan, went on a long-awaited vacation together, to the white sands and crystalline waters of Pensacola.  On August 4, the day before Stephen and Cassy’s 21st wedding anniversary, 16-year-old Jonathan suddenly began projectile-vomiting, and the family rushed him to a Pensacola ER. There had been no precipitating event, the DiLeos told doctors. In fact, the boy had had no unusual symptoms of late, other than a complaint of double vision, and that had been addressed by an optometrist, who prescribed glasses. Concerned, the Florida doctors suggested a CT scan of Jonathan’s head. It revealed a tumor the size of a ping-pong ball in the pineal region of the boy’s brain.  Neurosurgeons at Children’s Hospital told the DiLeos that while young Jon’s tumor was inoperable, chemotherapy might be effective. Indeed, 12 weeks into it, the mass had shrunk by 50 percent. Radiation would be needed next. After researching the procedures available, the DiLeos brought their son to a Texas hospital.

Here, they met a neurosurgeon (whom they also cannot name) with a very different view of Jon’s condition. His belief, contrary to that of the Louisiana doctors, was that the tumor was indeed operable, especially now that it was smaller in size. In fact, he felt he could “potentially cure” the boy, Stephen remembers. There were risks, of course. Fluid might build up in Jon’s brain after the operation, for one. The surgeon assured the DiLeos that a shunt could be installed, however, if and when fluid build-up became a problem.

According to the DiLeos, the neurosurgeon expressed great confidence in his ability to remove the tumor and cure Jonathan, so the family consented to the surgery. A few days later the tumor was removed and a temporary drain for fluid placed. Four days after the operation, it appeared that fluid was no longer building up in the boy’s head, and so the temporary drain was removed, whereupon he was able to comprehend and respond to questions. Nineteen days after surgery, however, on the morning of December 1, there were ominous signs that fluid had again begun to build up in Jon’s brain. The teen had started having headaches and seizures—both signs of increased intracranial pressure—and his scalp had even begun to stretch visibly.

Nevertheless, neither a shunt nor a second temporary drain was ever installed, according to medical records. After a CT scan revealed an alarming increase in the boy’s intracranial fluid level, a radiation oncologist allegedly phoned Jon’s surgeon and informed him of this development, but the surgeon, apparently unfazed, took no action.

Around 1 p.m., Jon began having unbearable headaches that were unrelieved by medication. He no longer knew where he was, and the left side of his face began twitching. A series of seizures followed, and the boy became unresponsive, at which point he was transferred to the ICU. Jon’s surgeon did not come to see his patient there until around 5 p.m., and then only for a couple of minutes, according to the DiLeos.  Jon’s condition began to further deteriorate throughout the evening. The hospital placed emergency calls to his surgeon, but these went unanswered. Finally, around 11 p.m., the doctor did return to the hospital, and after seeing the results of a second CT scan, became convinced that the boy needed immediate surgery to install a shunt. At some point, the DiLeos remember asking him if he’d been in surgery during the five hours they’d tried to reach him that night. No, he said. He’d been at dinner with his family. The surgeon began to operate on Jon, but his efforts came too late. At 3:06 a.m. on December 2, Jon was declared brain-dead. Two days later, he was taken off life-support.

During Jon’s treatment, his parents had taken to reading the neurosurgeon’s progress notes (as former nurses, Cassy says, “we are pretty familiar with charts”). Over and over, they read of the doctor’s plan to install a shunt if Jon exhibited certain symptoms, many of which he had certainly experienced during the last week of his life. But the doctor had neglected to follow his own plan. After their son’s death, the DiLeos tried to reread the surgeon’s notes in Jon’s chart, discovering to their astonishment that all of the notes prior to December 1—the day before Jon’s death—were gone.

There were too many mistakes, too much evidence of negligence and/or incompetence on the part of neurosurgeon, and too much suspicion that either he or someone at the hospital had tried to cover this all up. And so, even as the DiLeos knew it would never bring their son back, they decided to sue the doctor for malpractice. It wasn’t money they sought but justice, and they were confident that in a court of law, justice would prevail.

And perhaps it would have—if Jon’s doctor had committed malpractice in a different state.

Supporters of tort reform in Texas began portraying the state as a “lawsuit mecca” and “judicial hellhole,” wherein “jackpot justice” reigned. Thanks to “frivolous lawsuits” and the lack of caps on punitive damages, so went the argument, high medical malpractice insurance premiums were forcing doctors to either leave the state or retire early. Hence, the shortage of physicians, particularly in rural areas. And among those who continued to practice, said supporters of tort reform, a fear of lawsuits was driving them to order multitudes of tests, many expensive and unnecessary, which meant higher healthcare costs for everyone.

Clearly it was time to rein in the lawyers, and in this cause the insurance companies joined forces with Texans for Lawsuit Reform, a lobbying group founded by four Houstonians: construction magnate Leo Linbeck Jr., homebuilder Richard Weekley, Richard Trabulsi, a corporate attorney (and now owner of the Richard’s liquor store chain), and Hugh Rice Kelly, Reliant Energy’s former general counsel. In 2003, in an astonishing series of victories, the TLR helped persuade the Texas Legislature to pass a bill capping non-economic damages for malpractice victims at $250,000, and $100,000 at certain public hospitals. Restrictions were also placed on contingency fees (in which lawyers are paid a percentage of what their client wins in court, if anything, rather than collect any money up front), and lawyers were prohibited from being reimbursed for expenses until their clients won—if they won. Tort reform advocates got almost everything they wanted from the legislature, and what they couldn’t get from lawmakers they got from the voters.

And so, that September, an amendment to the Texas Constitution known as Proposition 12 was put on the ballot. It was voted down in every major metropolitan area in the state, but the rural counties—convinced they would lose what few doctors they still had—voted in favor. By a razor-thin 1.2 percent margin, Prop 12 became law.

The Dileos weren’t aware of the sweeping reforms in Texas’s civil justice system.  It was clear to their lawyer, who had spent 14 years as a neurosurgeon prior to her law career, based on a review of the medical records, that Jon’s surgeon had been negligent.

For starters, Jon had been operated on in a public hospital, of which there are 132 in Texas and six in the Houston area, including some of the largest and best-known. That was important because in Texas, employees of state-run hospitals enjoy the same “sovereign immunity” as police officers, firemen, and other government workers, which is to say that they are almost impossible to sue. These days, if a doctor in Texas misreads a chart or fails to give you a dose of medicine or perform an operation that might have saved your life, it’s considered not negligence but an error of medical judgment. What’s the difference? You can’t sue a doctor for an error of medical judgment.

At any point in the process, there is the option of mediation. Hospitals facing potential suits frequently make offers of settlements to wronged patients, calculating that even an amount far smaller than the $250,000 cap will be enough to make the case go away. Furthermore, at certain public hospitals, damages can be capped at $100,000, and in at least some cases, patients and their loved ones are still responsible for medical bills. In other words, the mediation settlement amounts to something like a discount on botched care, and one that the families are prevented by a gag order from speaking about.

Given the anti-plaintiff provisions that the DiLeos faced, as well as the sovereign immunity granted the doctor, Jon DiLeo would never get his day in court, and the doctor who they believed was responsible for his death would get off scot-free.

 

Supporters are still calling Prop 12 an unqualified success. In an editorial published in the Austin American-Statesman last year, Brooke Rollins of the Texas Public Policy Foundation, a conservative think tank, claimed that tort reform had not only halted but reversed the exodus of Texas doctors. She predicted that by the end of 2013, Texas would have nearly 60,000 physicians, almost double the number it had had 10 years earlier, and termed it “no coincidence that since 2003 Texas has also distinguished itself as the national leader in job growth.” Tort reform, Rollins wrote, “is not the only reason for the Texas Miracle, but it is a big part of it.”

The American Medical Association states in 2002 there were 221 doctors per 100,000 Texans; in 2011, the last year for which statistics are available, there were 245, an 11 percent increase. Nationally, the mean number went from 288 to 322, and from 417 to 454 in New York. With regard to the latter, New York experienced roughly the same percentage increase in its numbers as Texas over the past decade, which is surprising, since the state already had more than one-and-a-half times as many doctors as us, and, even more surprising—at least to some—has no cap on malpractice damages.

What about the claim that tort reform would bring down health costs once doctors cut down on all those unnecessary tests and insurers lowered their malpractice premiums? Well, in the years following tort reform’s passage, malpractice premiums did decrease around 46 percent, but those savings have not been passed on to patients, according to a 2011 study by the consumer group Public Citizen. And as for the claim that Prop 12 would usher in an era of lower healthcare costs, well, even tort reform’s biggest backers are distancing themselves from that one.

After a 2012 study demonstrated that Prop 12 had done nothing to reduce health expenditures.  Inconveniently, the paper unearthed two campaign flyers from 2003, one of which promised “lower costs and more security in our health care system,” and another in which Governor Rick Perry claimed that Texans could “help make healthcare more affordable and accessible” by voting yes.  Ironically, says Texas Watch’s Alex Winslow, despite all the havoc Prop 12 has wreaked, the measure has accomplished precious few of its stated aims. “The cost of healthcare in Texas has gone up faster than the national average,” he says, “we’re ranked dead last in terms of quality of care according to the federal government, and access to doctors in underserved communities is still a huge problem.”

Still, Prop 12 has certainly accomplished one of its stated aims: there’s been a big decrease in the number of medical malpractice suits filed. A search of Harris County District Court records reveals that in 2002, the last full year before tort reform, 573 medical malpractice suits were filed in Houston. In 2013, there were 213. Winslow believes that a significant number of patients with meritorious cases simply don’t file them anymore.

Some states have already overturned tort reform on their own. The supreme courts of both Georgia and Missouri have reversed laws passed by their legislatures (they had capped damages at $350,000). In each case, the court ruled that the caps were unconstitutional, robbing juries of their voices. Winslow does not expect the pro-business Supreme Court of Texas to follow suit, and if Greg Abbott is elected governor, there won’t be any winds of change blowing from the executive branch either. After all, roughly 20 percent of the donations to Abbott’s attorney general electoral campaigns came from tort reform supporters.

 

Arbitration is a Corrupt Fraud

Posted in Arbitration

Matthew Saroff wrote the below article for his blog “40 Years in the Desert“.

Arbitration is a Corrupt Fraud

This little story of the corruption that is a feature, not a bug, of the arbitration process has made it to the New York Times:

Five years ago, Sean Martin, a registered representative at Deutsche Bank Securities in New York, saw something troubling on his trading desk.

A few of his colleagues, he said, were letting preferred hedge fund clients listen in on confidential market commentary by the firm’s analysts before their views were made public. He alerted his superiors and was almost immediately given a negative review, a first in more than 10 years at the firm, he said. His bosses also removed him from the group he’d been working with and cut his compensation.

Mr. Martin, who continues to work at Deutsche Bank, said he believed that he was being punished for reporting misconduct and took the one avenue of redress that was open to him. In August 2012, he brought an arbitration case against the firm, contending retaliation and asking to recover his lost earnings. As is typical in the financial industry, his employment contract required that any dispute between him and his employer go through private arbitration, not the courts. Mr. Martin’s matter is being heard by three arbitrators associated with the Financial Industry Regulatory Authority, a self-regulatory organization that operates the largest dispute resolution forum in the securities industry.

But Mr. Martin’s experience with arbitration, both he and his lawyer say, has raised questions of fairness in the process. The three-member panel hearing his case has barred him from testifying about certain crucial aspects of what he saw at Deutsche Bank and disallowed the introduction of documents that bolster his claims. This led his lawyer to conclude that the panel was not interested in specifics of the behavior at the heart of his accusations — and to ask a state court to step in.

“When I filed this arbitration, I expected that Finra would resolve the dispute between Deutsche Bank and me in a fair way,” Mr. Martin, 41, said in a statement provided by his lawyer. “I was surprised and disappointed when the arbitrators refused to listen to important parts of what I wanted to say and rejected or redacted my exhibits. I can’t see how a dispute can be fairly resolved if one party is not even allowed to tell their side.”

………

“How can a panel of arbitrators for the regulator justify not hearing evidence of wrongdoing?” asked Robert Kraus, a partner at Kraus & Zuchlewski in New York, who represents Mr. Martin. “It is completely upside-down.”

………
But Mr. Kraus, worried that his client would not get a fair hearing, last week filed a motion in New York State Supreme Court asking to stay the arbitration hearings. Arguments are on the docket for Wednesday in Manhattan. If the judge grants Mr. Kraus’s request, the court will hear arguments on whether the arbitrators should be removed.

………

Mr. Kraus said he did not take the decision lightly to file his request with the court. He said he’s had success in other Finra arbitrations over the years but that this case was different.

“Unlike other hearings where you question a ruling here and there, these arbitrators repeatedly excluded evidence that lies at the heart of our case,” Mr. Kraus said. “From time to time, you get these panels that go off the rails, and then the question is how do you remedy that?”

This is not surprising.

The private arbitration system is inherently corrupt.

The continued employment of arbitrators is dependent upon satisfaction the firms, and not the employees of customers, so their rulings invariably favor the big corps, at the expense of due process for the little guys.

Sufficient Notice of Arbitration Clause

Posted in Arbitration

On August, 18, the Ninth Circuit affirmed the district court’s denial of Barnes & Noble, Inc.’s motion to compel arbitration, finding that plaintiff did not have sufficient notice of Barnes & Noble’s Terms of Use agreement, and thus, could not have unambiguously manifested assent to the arbitration provision contained in it.  See Nguyen v. Barnes & Noble, Inc., Case No. 12-56628, 2014 WL 4056549, *1 (9th Cir. Aug. 18, 2014).  In Nguyen, the plaintiff brought a putative class action against Barnes & Noble after it had cancelled his purchase of two heavily discounted tablet computers during an online “fire sale.”  The plaintiff alleges that Barnes & Noble engaged in deceptive business practices and false advertising in violation of California and New York law.

In affirming the district court’s ruling, the Ninth Circuit found that the plaintiff did not have constructive notice of the arbitration clause in it, despite the fact that Barnes & Noble’s Terms of Use was available through a hyperlink at the bottom left of every page of its website (i.e., as a “browsewrap” agreement) and was in proximity to relevant buttons the website user would have clicked on.  Id. at *5-6.  The Ninth Circuit held that the onus was on website owners to put users on notice of the terms to which they wish to bind consumers, and that this could have been done through a “click-wrap” agreement where the user affirmatively acknowledged the agreement by clicking on a button or checking a box.  Id. at *5-6.  Indeed, the decision expressly states that had there been evidence of this, the outcome of the case may have been different.  Id. at *4.

Staffing at 4.1 hours of nursing care per day per patient

Posted in Staffing

Illinois Citizens for Better Care  is a group dedicated to Improving the quality of life of Illinois long-term care residents.  They recently published the below are their website.

Both the federal government and Illinois require that nursing homes have enough staff to meet the needs of their residents.  The federal government does not enforce a minimum number for how much nursing staff a nursing home must have.  It does recommend that each resident who needs skilled care get at least 4.1 hours of nursing care every day, including 1.2 hours  (72 minutes) by a licensed nurse.  The federal government recommends that 45 minutes of the  1.2 hours be care by a registered nurse. In addition to the general requirement that nursing homes have enough staff to meet their residents’ needs, Illinois has always had an actual number for minimum nursing staff.  The 2010 Illinois nursing home reform law is increasing the minimum number; by January 1, 2014, it is scheduled to be one-and-a-half times what it was when the law was passed.

As of January 1, 2013, Illinois requires that a nursing home have enough staff to give each resident needing skilled care at least 3.4 hours of nursing care, including at least 51 minutes of licensed nurse care.  At least 21 minutes of the licensed nurse time must be care by a registered nurse.  For residents needing intermediate care, the numbers as of January 1, 2013, are 2.3 hours total nursing care, including at least 34 minutes licensed nurse time (14 minutes registered nurse time.)

Minimum staffing is scheduled to increase on January 1, 2014. The final numbers are supposed to be 3.8 hours total nursing time for residents needing skilled care, including 57 minutes licensed nurse time (23 minutes registered nurse time.)  For residents needing intermediate care, the numbers are scheduled to be 2.5 hours total time, 38 minutes total nursing time, (15 minutes registered nurse time.) The nursing staff counted in these numbers includes registered nurses, licensed practical nurses, and certified nursing assistants.  Under some circumstances, therapists and therapy aides may also be counted.  Other staff may be counted for residents who have a diagnosis of a serious mental illness.

Nursing homes are supposed to count as direct care staff, only people who are actually taking care of residents. They are not allowed to count time scheduled for breaks or training. You can see the staffing rule here. 

Nursing homes are required to post publicly, the names and job titles of the nursing staff working each shift.  Because nursing homes do not publicly post how many “skilled” and “intermediate” residents they have on each floor or unit, most of the time it will not be possible to tell automatically if the nursing home is meeting its minimum staffing requirements.  (If a unit obviously has all skilled residents – say,  on ventilators or oxygen – it is easier for an outsider to do a count.)  You can get some idea, however, from the staffing numbers that are posted, and – if you visit during different shifts – from talking to the staff as well as doing a head count.

All employees who examine or care for residents, are required to wear an identification badge with their first name, licensure status (if any,) and their job title or position. Regardless of the numbers, nursing homes are still required to meet their residents’ needs, even if this means they need more staff than the minimum numbers.