South Carolina Nursing Home Blog

South Carolina Nursing Home Blog

Nursing Home Information & Litigation

$30 Million Verdict

Posted in Verdicts/Settlements

WREG reported the jury’s verdict compensating the family of a neglected resident at Allenbrooke Nursing Home and Rehabilitation Center in Memphis.  The unanimous jury decided that $30 million was fair and just to compensate the family, and to punish and deter similar conduct in the future.  Of course, the insurance company will attempt to rely on legal technicalities to challenge the jury’s verdict and avoid taking responsibility for the injuries they caused.

Martha Jane Pierce moved into Allenbrooke after her dementia just became too difficult for her family to handle on their own.  Her husband of 60 years soon followed.  She could walk and  didn’t have any skin breakdowns or bed sores.

However, Mrs. Pierce got worse and had to make several trips to and from the hospital for dehydration and malnutrition.  This contributed to the development of a pressure injury or pressure ulcer.  The failure to treat the ulcer or relieve the pressure caused the ulcer to increase in size and depth including reaching all the way to her bone.  The foot ulcer developed an infection because of the facility’s neglect which led to her leg being amputated.   The lawsuit proved that  many of the problems at the nursing home were due to a lack of staffing.

Her family sued the nursing home, its parent company and several other executives a year after her death. Last week, after years of delays, a jury ruled in their favor and returned a verdict with damages worth more than $30 million.

 

 

Nursing Home Compare

Posted in Advocacy, Medicare, Staffing, Trial themes

CMS launched Nursing Home Compare in 1998, adding the Five Star Nursing Home Quality Rating System in 2008. Through the Five-Star program, CMS summarizes available data for nursing homes in a consumer-friendly format while providing comparisons against state and national data for reference.

On August 10, 2016, CMS added five new quality measures to the calculations for its nursing home Five-Star Quality Ratings. The five measures are available on the CMS Nursing Home Compare website, which aggregates data on health inspections, staffing, and quality indicators to provide facility ratings.

Three of these measures are based on Medicare claims data submitted by hospitals. Until the addition of these quality measures, the CMS quality measures were based solely on data self-reported by nursing homes. The quality measures are:

  1. Percentage of short-stay residents who were successfully discharged to the community (Medicare claims- and Minimum Data Set (MDS)-based);
  2. Percentage of short-stay residents who have had an outpatient emergency department visit (Medicare claims- and MDS-based);
  3. Percentage of short-stay residents who were rehospitalized after a nursing home admission (Medicare claims- and MDS-based);
  4. Percentage of short-stay residents who made improvements in function (MDS-based);
  5. Percentage of long-stay residents whose ability to move independently worsened (MDS-based)

The additional quality measures represent an effort by CMS to emphasize quality of care. As patients and families use Nursing Home Compare to evaluate facility options, providers should be prepared to answer questions and explain the information that factor into the facility’s star rating.

Medicare Rule on Arbitration Forthcoming

Posted in Arbitration

Michael Williamson of Bloomberg News reported on the forthcoming new Medicare rules on mandatory arbitration agreements in nursing home admission paperwork.  The Office of Management and Budget started reviewing the final rule, which more than 15,000 long-term care facilities must implement to qualify for the Medicare program. The Centers for Medicare & Medicaid Services released the proposed rule with the arbitration proposal in July 2015.

“Under the proposed version of the rule, if a nursing home includes binding, or pre-dispute, arbitration agreements in their admission contracts, the facility must explain the agreements and the patients must acknowledge they understand them.”

Consumer advocates, legal experts, and families of loved ones have all argued that pre-dispute mandatory arbitration is illegal, unfair to patients and their families, only benefits nursing home owners, and violates resident’s constitutional rights.  Also, arbitration will not deter the waste, fraud, and abuse of taxpayer funds for poor quality care.

The CMS “was right to recognize how problematic forced arbitration is” in the proposed rule, said Sarah Rooney, director of regulatory affairs at the American Association for Justice. However, the proposal “would simply green-light the nursing home industry to continue using forced arbitration as long as certain disclosures are made.”

 

Bottom Feeders

Posted in Staffing, Trial themes

Laphonza Butler wrote a great article on the importance and necessity of adequate staffing in nursing homes.  Butler is provisional president of SEIU Local 2015 and  president of SEIU California.  Butler bemoans the lack of progress in elevating the quality of care in California’s nursing homes despite billions being spent and profits soaring.  The rpoblem is money being spent is not going to increase staffing which improves the quality of care.

Caregivers in nursing homes do critical life saving work. They are trained to help frail and vulnerable patients.  They provide care to over 340,000 of California’s most vulnerable citizens: seniors, people with disabilities, and people recovering from serious illness or injury. At some point in each of our lives, one in three of us will need to spend time in a nursing home.

Graciela Pennington “recalls the heartbreaking reality of short staffing by telling the story of a dying woman who was calling her by name as she was rushing from patient to patient. To Pennington’s lasting regret, the woman passed away without having her trusted caregiver at her side to hold her hand.”

Individuals struggle to provide quality care and complete all tasks which reflects a significant structural problems in the nursing home industry as a whole. California’s minimum staffing ratio for nursing homes is just 3.2 hours per day of patient care, far below what is needed when you consider patients need help bathing, being turned to prevent pressure sores, eating, having diaper changes, and following other medical orders.  The standard hasn’t been updated in decades.

Caregivers are constantly on the run – just trying to avoid disaster rather than providing the care they want to: attentive, careful, and humane.  Study after study shows that without proper staffing, patients are at risk of unnecessary falls, illnesses, and injuries, and workers too are exposed to greater risks of workplace injury and violence.

It’s no wonder, then, that the federal government years ago recommended a significantly higher standard of 4.1 hours of care per day. While many nursing homes exceed this standard and many are well above the minimum, there are a significant number of bottom feeders, homes that, year after year, staff just at the level needed to keep within the law.

 

Prison Nursing Homes

Posted in Advocacy

WSAZ reported on an interesting proposal for a prison nursing home.   More than 200 jobs could be created if the prison nursing home moves forward.  The skilled nursing facility would cater to ill, end-of-life inmates.  Prisoners with serious medical issues will be placed as parolees in the facility, where a skilled nursing staff can care for them around the clock.

Officials reiterated that those in the facility would not be a danger to the community. The ill prisoners are bedridden and some can’t feed or walk by themselves.

“We’re looking at a possibility of a $5 million payroll based on 1.5 people working for every one bed,” Floyd County Judge Executive Ben Hales told WSAZ.  Prisoners must meet specific criteria outlined by Social Security — then medical bills will be paid through Medicaid and Medicare.
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Short Staffing = Loss of Dignity

Posted in Abuse and Neglect, Advocacy, Staffing, Trial themes

Hilda Casey has lived at Rosemary Heights Seniors Village for the last eight months.  Her family is speaking out about the neglect their mother suffers particularly in the evenings when there are fewer staff.  The neglect includes sitting in her own feces while she waits for staff to help.  “I’ve waited well over an hour sometimes, for people to come back and give me service, sometimes it’s an hour and a half,” said Casey, noting two people are required to move her. “It’s like as if you’ve been forgotten.”

The dignity, where is it?” asked her daughter Monica Burrell .  “Where has it gone?”  She said because of the low staffing levels, it is not uncommon for her to have to wait more than an hour for help.  Burrell says the people who care for her mother are friendly, but it’s just not enough.

“The staff is quite friendly as well, I’ve got to admit,” she said, adding that the nursing home is understaffed. “They try to do things for you, but it’s just not enough.”  “They’re just overworked for the amount of residents. At night they have one nurse and three care aides so if they have an incident of any sort there’s no one available to help mom and she needs two people to help lift her on a commode.”

“The effect on my mother’s dignity one can only imagine.”

Nebraska Arbitration Decision on Non-Signatories

Posted in Arbitration

Nora A. Valenza-Frost from Carlton Fields had an interesting article on a recent Nebreska decision Applied Underwriters, Inc. v. Top’s Personnel, Inc., 8:15CV90 (USDC D. Neb. May 26, 2016), recommendation adopted (June 16, 2016) that held a non-signatory could not be compelled to arbitrate.

A signatory may bind a non-signatory to an arbitration agreement through principles of contract and agency law such as: (1) incorporation by reference; (2) assumption; (3) agency; (4) veil-piercing/alter-ego; and (5) estoppel. A Nebraska federal court held that none of the theories required Plaintiff to arbitrate its claims.

Defendant entered into a reinsurance participation agreement (“Agreement”) with Applied Underwriters Captive Risk Assurance Company (“AUCRA”) which contained an arbitration agreement. A schedule to the Agreement added an additional 22 parties. Plaintiff was not a party to the Agreement. Years later, the defendant executed a promissory note (“Note”) with plaintiff. The Note included the same additional 22 parties as in the “Agreement”. Defendant defaulted on the note, and litigation ensued. Although the complaint initially included a cause of action for breach of the Agreement, it was later amended to include a single cause of action for breach of the Note. The Defendant moved to dismiss or stay the action pending arbitration under the theory that Plaintiff was bound as a non-signatory to the arbitration agreement.

Under the theories of agency and veil-piercing, the Court stated “a corporate relationship is not enough to bind a non-signatory to an arbitration agreement.” It found defendant did not present any evidence AUCRA had actual, implied, or apparent authority to bind Plaintiff to the Agreement or the corporate relationship was sufficiently close or the formalities were disregarded so the corporate veil was pierced or the two entities acted as each other’s alter ego. In fact, Plaintiff was the indirect parent of AUCRA.

Defendant also argued the Agreement was incorporated by reference in the Note. “When determining whether an arbitration provision was incorporated … the new agreement must either incorporate by reference the entire previous contract, or must expressly incorporate the portion containing the arbitration provision.” Here, the Court found the Note neither directly referenced the Agreement, nor incorporated any of its terms – particularly its arbitration provision.

 

Inability to Pay Cost of Arbitration

Posted in Arbitration

The 9th Circuit in  Tillman v. Tillman, 2016 WL 3343785 (9th Cir. June 15, 2016) allowed a claimant to proceed in court after her arbitration had been terminated due to her inability to pay the arbitration fees.

The case involved a client’s malpractice claim which was stayed by the federal court after the victim was forced into arbitration. However, the plaintiff was unable to pay the $18,562.50 fee the American Arbitration Association (AAA) required to administer the claim.  The arbitrator terminated the arbitration as a result of nonpayment.

Defendants asked the court to dismiss the Complaint for failure to prosecute. The court reviewed evidence and confirmed the client was unable to pay the AAA fee, but dismissed her case anyway.  However, the Ninth Circuit found the district court erred when it dismissed the client’s claim. It found nothing in the FAA or binding precedent that required dismissal of the litigation.  Therefore, it enforced a district court’s usual obligation to decide cases properly before it.

It commented:

Our decision that Tillman’s case may proceed does not mean that parties may refuse to arbitrate by choosing not to pay for arbitration.  If Tillman had refused to pay for arbitration despite having the capacity to do so, the district court probably could still have sought to compel arbitration under [Section 4 of the FAA].

 

Nursing Labor Market Competitive, Increase in Pay

Posted in Staffing, Trial themes

McKnight’s reported great news for registered nurses in nursing home.  Pay rates for registered nurses working in skilled nursing facilities rallied in 2016, with employers awarding raises at levels not seen in years. It’s a reflection of the competitive market for RNs, believes Rosanne Zabka, director of reports for Hospital & Healthcare Compensation Service, which annually conducts the largest annual nursing home survey of its kind.

With RNs, we saw a lot of increases, up to 10%,” Zabka told McKnight’s on Monday. “We saw a lot of 4%, 5% and 6%. It’s been years since we’ve seen a four.  The increase in pay does not seem to include CNAs who perform 90-95% of all direct care to residents.

The Nursing Home Salary & Benefits Report 2016-2017 was by HCS, which produces the annual publication in cooperation with LeadingAge and support from the nursing home industry lobbyist American Health Care Association. It includes data from more than 155,300 employees of 2,076 participating nursing homes

The jump comes amid rising turnover rates among RNs, according to HCS. RN turnover was pegged at 27.55% in 2014; 29.0% in 2015; and 31.17% in 2016.  Higher turnover leads to less quality of care.

Average hourly pay for RN staff nurses rose from $26.43 to $27.19 among facilities that took part in both the 2015 and 2016 surveys. The national average for staff RNs among all facilities taking part was $27.62 (gauged at the 50th percentile).

Other averages at the 50th percentile for all facilities nationwide were: Charge Staff Nurses (RN level) — $26.97; Practical Nurses (LPN) — $21.42; Charge Staff Nurses (LPN) — $20.70; and Certified Nurse Aides — $12.33.

Nursing home administrator salaries across the country increased 3.78% over the past year, when using a same-facility comparison.

 

Sharing Videos of Abuse and Neglect

Posted in Abuse and Neglect, Advocacy, Staffing, Trial themes

Fox59 reported on the shocking videos of abuse and neglect being shared on social media by nursing home employees.  An updated report from independent investigative non-profit ProPublica shows cases of elder abuse and privacy invasion are growing.

They found another 12 incidents investigated by local governments during the first seven months of 2016. That’s as many as there were during all of 2015.  In some of the cases, Ball State professor John Strauss says the videos confirm some families’ worst fears.  A congressional study found 30 percent of nursing homes were cited for abuse over a two-year period.  Strauss believes these pictures and video are making it harder to ignore that sobering statistic.

It is an affirmation that the people concerned about the welfare of their seniors, you know, have reason to be,” said Strauss.

The abuse of patients is terrible in its own light,” said Strauss. “The sadly depressing thing is that people are sharing this with their friends. It’s good that this has come to light you know, because it does shed light on the greater problem of care of our elderly.”

“These organizations simply need to ban these devices from areas in which folks are getting care,” said Strauss.

See the recent CMS memo Social Media with guidelines for facilities to stop this gross invasion of privacy.