Poliakoff and Associates would like to wish everyone a Happy Thanksgiving!
As many of us will be watching football today, I wanted to share an article from the NY Times about one lawyer’s crusade to make the game safer.
Poliakoff and Associates would like to wish everyone a Happy Thanksgiving!
As many of us will be watching football today, I wanted to share an article from the NY Times about one lawyer’s crusade to make the game safer.
Medscape had a great article on the lack of RN staffing at nursing homes and how that affects the quality of care for the residents. ”A large and growing volume of research shows that a higher nurse-to-patient ratio improves patient outcomes. Furthermore, when those nurses are registered nurses (RNs) rather than licensed practical nurses (LPNs), the care improves even more. That’s why it’s alarming that in one of the most heavily regulated segments of healthcare in the United States, namely nursing homes, there are almost no requirements for the use of RNs in providing care to our frail elders.”[1,2]
In 1986, Congress directed the Institute of Medicine to prepare a report on the services then being provided in the nation’s nursing homes and to make recommendations to improve the care. The Institute of Medicine’s recommendations became the foundation of the NHRA within OBRA which are regulatory rules applicable to all nursing homes. OBRA brought tremendous changes and some improvements to America’s nursing homes through increased regulatory oversight. Within OBRA is a requirement that each nursing home have “sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care.” There are no regulations establishing minimum ratios of nursing staff to residents or the credentials of nursing staff, with one exception.
OBRA requires “that a skilled nursing facility provide 24-hour licensed nursing services, an RN for 8 consecutive hours a day, 7 days a week, and that there be an RN designated as Director of Nursing on a full-time basis.” This minimal requirement is the same for facilities serving a small or large number of residents, and is the same regardless of whether the clinical acuity is low or high. Embarrassingly, organizations of nursing home professionals have made little effort to advocate for minimal nurse-to-resident staffing ratios. Like the public campaigns that have led to the creation of OBRA in the 1980s, consumer groups have done most of the lobbying for better staffing ratios and more professional staff. As a result of these efforts, many states have tried to strengthen the OBRA staffing standards, to no avail: Although state regulations are typically less vague, they are not much more stringent.
When the surveyors calculate the staffing ratios, they include the staff reported on the daily staffing sheets. This report is supposed to include only the direct care staff—that is, excluding those staff with administrative roles only. As an example, the staff educator will generally not be included. Although the distinction seems rather clear, many roles are less clear. In many facilities—and certainly in all facilities on a given day—the unit manager or shift supervisor spends most of his or her time performing administrative functions and very little time providing direct care. As a result, many believe that the ratios reported may not accurately reflect the direct care staff.
Another major flaw in the CMS five-star measure for staffing is less obvious. Anecdotal evidence gathered around the country describes a common occurrence, as perceived among staff (and sometimes residents and their families), that facilities boost their staffing as the annual survey window approaches.
What can healthcare professionals do? They can lobby legislators to make changes in staffing requirements to match the evidence in the research. More RNs means better care and better outcomes! Let legislators know that nursing homes are providing more complex care than ever, and the old staffing patterns typical of chronic care facilities of decades past is no longer adequate.
WBUR’s Common Health had an interesting article on bullying in nursing homes. New research released shows that aggression among residents in nursing homes is widespread and “extremely high rates of conflict and violence” are common, according to study author Karl Pillemer, professor of gerontology in medicine at Weill Cornell College of Medicine in New York. His stark findings: One in five people living in the nursing facilities studied was involved in at least one “negative and aggressive encounter” with another resident during a four-week period.
In a sample of more than 2,000 residents, 16 percent were involved in incidents of cursing, screaming, or yelling; about 6 percent in physical violence such as hitting, kicking, or biting; one percent in “sexual incidents, such as exposing one’s genitals, touching other residents, or attempting to gain sexual favors”; and 10.5 percent in events researchers labeled “other” — residents entering rooms uninvited, for example, or rummaging through others’ belongings.
Abuse and mistreatment of the elderly in nursing facilities is a serious and growing problem. One survey of certified nursing assistants found that 17 percent of CNAs had physically abused residents, 51 percent had yelled at them, and 23 percent had insulted or sworn at them. The elder population is burgeoning; the number of vulnerable elderly is increasing; more and more people need care—and nursing homes are understaffed. Because abuse is usually hidden, data on abuse is difficult to gather. The problem is very likely vastly underreported, according to the National Center on Elder Abuse. Rates of abuse are especially high among elders with dementia: as many 50 percent of people with Alzheimer’s and other dementing diseases may be mistreated.
Mild to moderate dementia is clearly a factor in much of the aggression, however, because it causes disinhibited behavior. Other factors, Pillemer says, include:
• Crowded conditions: The study found higher rates of mistreatment in more crowded facilities, and in areas within facilities where residents were more densely gathered.
• Understaffing: The study found higher rates of resident-on-resident aggression in nursing homes with lower staff-to-resident ratios.
• Nursing-home workers who are inured to the problem: “Staff can become somewhat blinded to this,” Pillemer says, “because of the frequency with which it occurs.”
• Conflict’s cyclical nature: “The negative behavior and effects are contagious,” Pillemer says. “Seeing these incidents causes other residents to be fearful, anxious, concerned—and that can lead to more of the behavior.”
The prevalence of such aggression raises questions about how well U.S. nursing homes are meeting the great and growing need for compassionate, skillful long-term care. Laura Mosqueda, a practicing geriatrician and director of the National Center on Elder Abuse, believes that nursing homes should be seen as responsible for easing aggression. “Let’s not forget that the people [in this study] … are some of the most vulnerable members of our society. Even if they’re the ones who are ‘perpetrating’ some of this, they’re not the ones who should be held accountable,” Mosqueda says. If, for example, inadequate staffing is linked to the problem, as the study found, then facilities should hire more staff, she says.
Mosqueda, Pillemer, and others say that staff need to better understand the root of the problems. For instance, Pillemer asks, “Is someone being aggressive because they’re in pain? Are they being aggressive because they’re hungry or bored? Personalizing the care for residents, understanding why they [become aggressive], and looking for individual solutions are very important.”
He believes that better training for nursing-home workers is essential to help them deal with aggression more skillfully, to protect residents and to keep themselves safe. “These violent and aggressive and conflictual incidents are extraordinarily stressful for staff,” he says.
Salon had a great article on how Big Business is taking away our constitutional right to a jury trial by forcing mandatory arbitration clauses in all consumer and employment contracts. ”These hidden forced arbitration clauses lurk behind many of the most brutal injustices facing consumers and workers.”
In the early 20th century, American corporations frequently required their workers to agree not to join together in a union to seek higher wages or better working conditions. The choice wasn’t whether or not to waive your rights, but whether you wanted a job — and that wasn’t much of a choice at all. Commentators at the time referred to these agreements as “yellow-dog contracts,” because they “reduced to the level of a yellow dog” every person forced to sign them. The contracts were not the result of free and equal bargaining between workers and their employers. Rather, they effectively forced employees to sell themselves into indentured servitude. With the Norris-LaGuardia Act, Congress preserved workers’ dignity and restored the freedom to contract.
Recently, a series of Supreme Court decisions have made forced arbitration agreements a new kind of “yellow dog contract.” Buried in the terms and conditions of cellphone contracts, credit agreements, school enrollment forms, nursing home contracts and employment contracts in non-union workplaces, forced arbitration clauses require consumers and employees to give up their constitutional right to a jury of their peers as a condition of keeping their job or buying goods from a company.
We know that despite assurances from corporations that arbitration is faster and quicker than litigation, forced arbitration agreements often require consumers and non-union employees to pay arbitration fees that are much higher than the filing fees they would have to pay to file a claim in court.
We know that the vast majority of consumers and non-union employees are prevented from vindicating their rights because forced arbitration clauses prevent them from pooling their resources in a class or collective action, thus allowing companies to violate the law with impunity.
We know that arbitrators who handle claims under these forced arbitration clauses, who are paid hundreds of dollars by the hour, have a financial incentive to rule in favor of corporations to keep getting work from the companies whose arbitration clauses designate them to decide claims.
And we know that these agreements, like the “yellow-dog contracts” of the early 1900s, aren’t agreements at all. They are the price of being a consumer or non-union worker in 21st century America.
The legalese in the “Terms & Conditions” we absentmindedly accept online and the dense language of the employee handbooks given to us on the first days of jobs in non-unionized workplaces aren’t bargained for after negotiation as contracts should be. This language is developed by lawyers in office buildings behind closed doors. Recently it came to light that, in the late 1990s, the major credit card companies came together to form a secret “arbitration coalition” designed to create ways to force consumers to waive their rights to file claims in court. When credit card companies changed the terms of their card agreements to effectively insulate themselves from liability for wrongdoing, consumers were left without a choice. They could either waive their rights or give up their credit cards.
Voluntary arbitration can help resolve some disputes, but consumers and employees should have the opportunity and right to make this choice for themselves. Recently, President Obama signed an Executive Order allowing employees of large federal contractors to voluntarily decide whether they want to submit their sexual harassment or discrimination claims to private arbitration. The CFPB can do the same for consumers of financial products, the Security Exchange Commission for some investors, and the EEOC can help tackle the clauses in employment agreements. Congress can simplify things by giving all employees and consumers the right to voluntarily decide whether they want to arbitrate disputes.
The freedom to contract is one of the bedrocks of our society. Let’s take it back by stopping forced arbitration.
Weill Cornell Medical College had an interesting article on their website about the growing problem of inappropriate, disruptive, or hostile behavior between nursing home residents. The study found that nearly one in five nursing home residents were involved in at least one negative and aggressive encounter with one or more fellow residents over the previous four weeks. These included acts of verbal or physical abuse, inappropriate sexual behavior, or invasion of privacy, among other incidents, known collectively as resident-to-resident elder mistreatment. This new study, funded by the National Institute on Aging, suggests that a frequent threat to residents is aggression committed by other cohabitants.
“This is the first study to directly observe and interview residents to determine the prevalence and predictors of elder mistreatment between residents in nursing homes,” said Dr. Karl Pillemer, a professor of gerontology in medicine at Weill Cornell and the Hazel E. Reed Professor in the Department of Human Development at Cornell University. “The findings suggest that these altercations are widespread and common in everyday nursing home life. Despite the acute urgency of the problem, resident-to-resident mistreatment is under-reported. Increased awareness and the adoption of effective interventions are greatly needed.”
The study showed that resident-to-resident elder mistreatment affected 19.8 percent of residents over a four-week period. Specific types of mistreatment included verbal incidents, such as cursing, screaming or yelling at another person (16 percent); physical incidents, such as hitting, kicking or biting (5.7 percent); and sexual incidents, such as exposing one’s genitals, touching other residents, or attempting to gain sexual favors (1.3 percent). A fourth category, which involved 10.5 percent of people, included unwelcome entry into another resident’s room or going through another resident’s possessions.
“People who typically engage in resident-on-resident abuse are somewhat cognitively disabled but physically capable of moving around the facility. Often, their underlying dementia or mood disorder can manifest as verbally or physically aggressive behavior. It’s no surprise that these individuals are more likely to partake in arguments, shouting matches, and pushing and shoving, particularly in such close, crowded quarters,” Dr. Pillemer said.
They recommend programs that educate and train nursing home staff to recognize and report resident-to-resident elder mistreatment; provide guidelines for staff to follow when incidents occur; and use an approach that considers the needs and abilities of individual residents.
Another form of alleged abuse that has been lurking amongst nursing homes and elder care facilities is mandatory pre-suit arbitration clauses hidden in nursing home admission paperwork. The so-called “arbitration agreement” is a common practice of nursing homes in an attempt to escape accountability. Families of incoming residents are asked to sign waivers that hold any and all disputes over elder care neglect or a nursing home injury are to be decided by arbitration, and not the courts. Lately, the courts have been ruling that such agreements are unconscionable, in that they tend to be one-sided and violate public policy. When you waive your right to a jury trial, do you really understand what you’re giving up? And if you don’t fully understand or comprehend what you’re agreeing to, how much weight can be put on the agreement in the first place?
In Hendricks v. Manor Care, Berks County Court of Common Pleas Judge Jeffrey Sprecher found that some of the provisions in the arbitration agreement at issue in the case were “misleading,” while others were “overreaching.” “There is no evidence that this plaintiff realized what she was giving up by waiving a jury trial or even a court proceeding,” Judge Sprecher said, in his opinion released October 3. “This plaintiff is not an attorney or a businessperson experienced in the law. This court cannot conclude that plaintiff understood her rights. Therefore, this court concluded that plaintiff lacked informed consent when she agreed to waive the resolution of all future disputes in a court of law in favor of private arbitration.”
“Arbitration may be fine for monetary issues in business transactions, but injuries caused intentionally or negligently in tort should not be the subject of routine arbitration unless both parties fully and completely negotiated and agreed to the final terms,” Sprecher wrote. “Unlike contracts where the issues are relatively clear and a breach can be easily identified, negligence issues are not so obvious.”
Sprecher also noted that Hendricks was asked to sign the arbitration agreement at an emotionally trying time and did not fully understand what she was agreeing to. There was no provision for negotiation in the agreement, which had to be signed as is. Judge Sprecher held that the agreement was “procedurally unconscionable.”
In November 2011, a five-member majority of the Florida Supreme Court rejected key aspects of an arbitration agreement signed by the family of a resident with Manor Care Florida Inc. The lawsuit, Gessa vs. Manor Care of Florida Inc., involved the same elder care company that was involved in the Pennsylvania case.
Yet another case in New Mexico also found for the plaintiff. The son of a resident who died just a few months after admission filed a wrongful death lawsuit on behalf of his deceased parent. The defendant immediately moved to compel arbitration. The trial court in Figueroa v. THI of New Mexico at Casa Arena Blanca LLC,denied the motion on grounds that the agreement was one-sided and unconscionable, citing the Supreme Court’s decision in Cordova v. World Finance Corporation of New Mexico, 2009-NMSC-021, 146 N.M. 256, 208 P.3d 901, which held that arbitration agreements that are unfairly and unreasonably one-sided in the drafter’s favor are unconscionable under state law.
The L.A. Daily News reported the sad preventable death of a nursing home resident who choked on medications mixed with apple sauce. Windsor Gardens Healthcare Center of the Valley, a skilled nursing facility in North Hollywood, was fined $75,000 after a state inspection concluded a Class “AA” citation, the most severe penalty under state law, was warranted.
The death occurred last year, when a resident who had trouble swallowing was given the oral medication in her apple sauce. She was admitted to the hospital where she died days later as a result of aspiration pneumonia or “infection of the lungs that develops due to the entrance of foreign materials, usually oral or stomach contents, into the lungs, often caused by an inability to swallow; the bacteria are different than those seen in common types of pneumonia,” according to the state inspection report.
Tri-City Herald reported the preventable death of Harry Lee Minor and the pending lawsuit still going on five years later. Minor’s family sued the skilled nursing facility, Avalon Health & Rehabilitation Center, where he died after falling from a patient lift. They also sued the lift manufacturer, ArjoHuntleigh. David Tift, a Seattle-based attorney for Avalon, said ArjoHuntleigh had a contract to maintain the lift and an Arjo technician had recently worked on it, and “in spite of them recently having done work on it, it failed.”
Harry Lee Minor died in December 2009. He generally was in good health but had dementia. He lived at Avalon for several months. On Dec. 20, an Avalon staffer used a patient lift to transfer him from a chair to his bed. When he was about four feet in the air — at the lift’s maximum height — it broke and Minor fell to the floor. He felt immediate pain, and first responders took Minor to the hospital “where it was learned that (he) had a fractured pelvis as a result of the fall” but nothing could be done. He was released back to Avalon later that evening and died several hours later. The pelvic break led to fatal hypovolemic shock
The family argues negligence — on the part of the facility, the lift maker or both — led to their father’s death. They feel the matter has dragged on, and “we want it to be done and over with. We want to go on with our lives,” said Guy Minor. “We make sure that this never happens again (to another person).” The family is angry and they want accountability and closure.
WFLA had a great article on the importance of video cameras to protect loved ones in nursing homes. The hidden camera stashed in a room at Palm Garden nursing home in Winter Haven, shows a series of abusive acts. At Privacy Electronics in Pinellas Park, Ian Robinson displays an array of cameras that can easily be hidden. Some “nanny cams” record all the time, others wait for a motion trigger. People hide them for all kinds of reasons. They’re tiny, but so powerful at collecting evidence.
A Stetson University School of law professor, tells 8 On Your Side, a relative or guardian is allowed to place a camera in an elderly relative’s room but Prof. Adam Levine warns, you cannot record sound. “As long as they’re giving permission or their guardian is giving permission, they can do anything they’d like and recording of video is completely reasonable,” said Professor Levine.
My Fox Tampa Bay reported the tragic abuse of a vulnerable nursing home resident. It was captured by the victim’s son, Dale Wilson, who had noticed random unexplained bruising on his father. In early October, he set up a hidden camera. Two staff members, Yashika Zenobiaha Jones and Rose Dorlean Blaise, at Palm Garden Nursing Home Haven are facing serious charges after police say video captured them “tormenting” and battering a 76-year-old Alzheimer’s patient. Police released video showing several different incidents.
Police cited the video and interviews with other staff members regarding three specific incidents that happened over a time span of three weeks:
On Oct. 7, Jones was rubbing her hands on the victim’s face and making punching motions to agitate him. There is another nurse in the room.
On Oct. 16, Blaise appears to lunge at the victim as he gets agitated and flails his arms. In a police report, it says the woman used her legs and feet to stomp on his bare feet or kick him in the leg.
On Oct. 24, Jones again is seen making punching motions at the man. She also grabs his wrists, uses his fist to punch himself in the face, and slapped him in the face, police said.