South Carolina Nursing Home Blog

South Carolina Nursing Home Blog

Nursing Home Information & Litigation

Forced Arbitration

Posted in Arbitration

“Forced Arbitration: How Corporations Use the Fine Print to Bully Americans,” provides an in-depth analysis of how corporations use forced arbitration to deprive consumers, workers, students, and patients of their 7th Amendment right to go to court if they have been injured by a corporate wrongdoing.

Buried in your nursing home admission paperwork, credit card agreement, your employment contract, or in the click through agreement in your online purchase, is almost certainly a forced arbitration clause designed to trick you out of your constitutional rights.

Forced arbitration requires Americans to “agree” to surrender fundamental constitutional rights without ever realizing it. Most Americans believe forced arbitration is a kind of mediation or other voluntary process, but in reality, it is nothing of the sort. Mediation generally involves a third party who helps to facilitate a mutually agreeable settlement between two parties, but does not impose any judgment, while voluntary arbitration involves parties that choose to allow a third party to analyze and impose a judgment after a dispute arises. Forced arbitration simply eliminates this choice. Forced arbitration eliminates the right to hold corporations accountable in court when they break the law. Instead, legal disputes are funneled into a secret system designed by the same entities against whom the dispute has arisen.

In forced arbitration, there is no right to go to court, no right to a jury, no right to a written record, no right to discovery, no legal precedents to follow, no opportunity for group actions when it would be too difficult or costly to file a claim alone, no guarantee of an adjudicator with legal expertise, and no meaningful judicial review. 

Without such checks and balances, the deck is stacked heavily against consumers. And that’s the point. The use of forced arbitration clauses has soared as corporations realize it allows them to circumvent courts and avoid accountability — what some state judges have described as the equivalent of a “Get out of Jail Free” card.

Read our new report, “Forced Arbitration: How Corporations Use the Fine Print to Bully Americans,” to learn more about forced arbitration.

Home Health Workers Slow to Get Paid

Posted in Advocacy, Staffing

LiveWellNebraska reported the difficulty facing many home care workers who serve elderly and disabled Medicaid patients. They say they are being paid more slowly than before, and the delays are affecting their ability to pay bills. In Nebraska, some of the workers have asked the Nebraska Association of Public Employees for help.  Home care workers in Iowa also have complained about slow payments, according to the union that represented them until recently.

The problems are a disincentive to go into home care, which involves doing such tasks as laundry, cooking and house cleaning for patients, driving them to doctors’ appointments and performing other services that help patients remain at home instead of going into higher-cost nursing homes.

Nebraska’s Medicaid director, Calder Lynch, acknowledges there have been challenges over the past eight months and blames federal overtime rules affecting these workers.

Stephanie Beran, assistant ombudsman for the Nebraska Legislature, called home care workers’ complaints legitimate. “We’ve gotten a large volume of complaints,” Beran said. “It’s become kind of a systemic problem.” Beran said home workers are “doing incredibly important work, and I think it’s important to keep them happy. What’s so heartbreaking about some of this is, they’re just a number.”

There are about 5,500 independent home care providers in Nebraska, the state Department of Health and Human Services estimated. Other home care providers work for agencies, such as Caretech and Caring Senior Services in Omaha. Some larger home care companies, such as Right at Home, predominantly serve private-pay clients rather than Medicaid clients.

 

 

The number of Americans ages 70 and older increased from 21.1 million in 1990 to 27.8 million in 2010, a 32 percent jump. And that number is expected to rise by 38 percent, to 38.2 million, in 2020, said David Drozd of the UNO Center for Public Affairs Research.

 

Mike Marvin, executive director of the Nebraska Association of Public Employees, hopes to help them form an advocacy group and to seek legislation that would help them get paid in a timely manner. He said unionizing the workers isn’t his aim for the short term. “These poor people who do the home care,” Marvin said, “they are just abused to beat the band, as far as I’m concerned.”

 

Bounced Paychecks

Posted in Staffing, Trial themes

Everything Lubbock reported the sad situation at Littlefield Hospitality nursing home.  The owners owe the employees a total of $17,880.75, said the Lamb County District Attorneys Office. The DA’s Office said that six employees of Littlefield Hospitality have come forward, saying they are unable to cash their paychecks.

Sylvia Garcia is one of those employees, she worked for Littlefield Hospitality for two years as a Certified Nurse Aid. She was issued a check on June 25 that she received on June 27, and every day since then she has tried to cash the check to no avail.  Every time she tries to cash the check, she is unable to because her workplace has insufficient funds. As a mother, the stress of waiting for the money from her last check is weighing heavily on her.

She felt pushed to quit on July 2 when she realized she wasn’t going to be paid anytime soon. “The reason I had to quit was because I had to choose between my residents and my family, to take care of them, the main reason is I wasn’t able to get my checks to be cashed,” said Garcia.

Several of her coworkers also quit after not being able to cash their checks. Four employees expressed there had been other instances where Littlefield Hospitality had insufficient funds for their paychecks to cash, this recent incident was just the most egregious example.

“When I went and tried to cash it, they just threw the check it back in my face and it’s embarrassing because you work for a company that can’t pay you,” said Martha Freemon, who also worked at a CNA at Littlefield Hospitality. She also quit last week out of frustration with her payments.

Freemon explained that her family lost their car and couldn’t celebrate the 4th of July because they were missing the funds from the last paycheck.  The former employees said that the damage has already done, many have had their cars repossesed, power turned off, and bills go unpaid.

Garcia said that even if she gets the money in the coming days, going so long without the money she’s earned has caused problems for her and her family.

“My credit has been ruined, my name is in the mud because they haven’t been able to pay where I go to cash the checks,” she said.

“I’m waiting on a thousand dollars, that will get my truck back on, bills paid, rent paid, everything,” Freemon added. “I need this, I worked for it, I deserve it.”

Freemon wants to start looking into other jobs, but after losing her vehicle because she couldn’t cash her paychecks, she can’t even drive to get to future jobs.

Policing Patient Privacy

Posted in Abuse and Neglect, Advocacy, Staffing

NPR had an interesting article on how prevalent abuses of privacy through social media are in nursing homes but the difficulty in stopping it.

When a certified nursing assistant in Hubbard, Iowa, shared a photo online in March of a nursing home resident with his pants around his ankles, his legs and hand covered in feces, the most surprising aspect of state health officials’ investigation was this: It wasn’t against the law.  Iowa was unable to discipline her and she remains eligible to work at a nursing home.

The Iowa incident is just one illustration of how regulators and law enforcement officials nationwide are struggling to respond when employees at long-term care facilities violate the privacy of residents by posting photos on social media websites.

In a story published last year, ProPublica identified nearly three dozen of these cases, the majority involving Snapchat, a social media service in which photos appear for a few seconds and then disappear. We’ve discovered nine more instances since then, including one in which a youth volunteer at a Colorado nursing home shared a selfie on Snapchat that showed a 108-year-old resident urinating. (You can read details of each incident here.)

 

The Justice Department said it would share the concern with its Elder Justice Task Forces “to ensure that they are especially attuned to allegations of such conduct.”

The Office for Civil Rights within the U.S. Department of Health and Human Services could take action in such cases as part of enforcing the federal patient privacy law known as HIPAA. But that agency has not penalized any long-term care facility for photos posted online and has yet to release any social media guidance for nursing homes.

 

 

 

Iowa Senator Grassley says the incident in his home state troubled him. “It speaks to the lowest instincts of humankind that you never expect people to do,” he says.If you’re a worker there, if you were really concerned about the patient, why wouldn’t you start immediately cleaning people up?”

Has your medical privacy been compromised? Help ProPublica investigate by filling out a short questionnaire. You can also read other stories in our Policing Patient Privacy series.

Bankruptcy Won’t Protect Owners

Posted in Advocacy, Nursing home cases in the news, Tort Reform

News4Jax reported an interesting development in the case involving the U.S. Department of Health and Human Services and the Florida Agency for Health Care Administration in the dispute with bankrupt nursing home operator Bayou Shores SNF, LLC.  A three-judge panel of the 11th U.S. Circuit Court of Appeals ruled a bankruptcy judge did not have the authority to block health officials from cutting off Medicare and Medicaid payments to a Florida nursing home that was alleged to have violated patient-care regulations.

The case stems from state inspectors in 2014 citing a nursing home operated by Bayou Shores. Contending that the violations posed a threat to patients’ health and safety, federal officials notified Bayou Shores that they were terminating an agreement that included Medicare payments. Bayou Shores subsequently filed for Chapter 11 bankruptcy protection and asked the bankruptcy court to prevent the state and federal agencies from ending the payment agreements.

The bankruptcy judge sided with Bayou Shores and blocked the termination of the payments, leading the government agencies to appeal in U.S. District Court. A U.S. District judge ruled that the bankruptcy court did not have jurisdiction over the payment agreements, prompting Bayou Shores to take the issue to the 11th U.S. Circuit Court of Appeals.  The three-judge panel issued a 66-page ruling Monday that gave a detailed analysis of federal legislation and upheld the ruling by the U.S. District judge.

“HHS (the Department of Health and Human Services), not the bankruptcy court, has been charged by Congress with administering the Medicare Act and regulating Medicare providers,” said Judge Raymond Clevenger III and joined by judges Frank Hull and Julie Carnes. “Indeed, the bankruptcy court’s action here stymied the direct statutory mandate from Congress to HHS to take appropriate action (including potentially terminating a provider agreement) when, as here, a survey determines that a nursing home’s condition ‘immediately jeopardize(s) the health or safety of its residents.’ And though charged with broad jurisdiction to deal with issues related to a debtor’s bankruptcy estate, bankruptcy courts generally lack the institutional competence or technical expertise of HHS to oversee the health and welfare of nursing home patients or to interpret and administer a ‘massive, complex health and safety program such as Medicare.'”

Another CNA Accused of Assault

Posted in Abuse and Neglect, Staffing

The Utica Observer Dispatch reported the disturbing story about CNA Sonya King at Focus Rehabilitation and Nursing Center at Utica allegedly punching an 87-year-old male resident on the right side of the face, Attorney General Eric T. Schneiderman said.  The alleged altercation resulted in fractures of the right orbit of the right eye, fractures of the right and left nasal bones, and a fracture below the eye.

King, who worked at Focus for one and one-half years, was arraigned in Utica City Court on charges of second-degree endangering the welfare of a vulnerable elderly person or an incompetent or physically disabled person, first-degree falsifying business records and willful violation of health laws.

“Families deserve to know their loved ones are treated with the utmost care by medical professionals responsible for their safety and security,” said Schneiderman. “We will not tolerate the mistreatment of some of our most vulnerable citizens. My office will continue to prosecute those that physically harm elderly and vulnerable New Yorkers.”

Security Guard Strikes Resident

Posted in Abuse and Neglect, Staffing

The NY Daily News reported the awful nursing home security guard named Michael Adagba from Staten Island’s Verrazano Nursing Home who is accused of punching an 83-year-old Alzheimer’s patient when she tried to leave the building.

She suffered swelling and bruises to her face, head and the left side of her body, according to court papers. Adagba faces charges of felony and misdemeanor assault and harassment.

 

 

CNA Charged with Assault

Posted in Abuse and Neglect, Staffing

CNA Petula Davis, employee at at the Roman Eagle Memorial Home nursing home, has been charged with abusing a patient who suffers from dementia.  Davis is charged with three counts of abuse of an incapacitated adult, according to Danville General District Court warrants.

 The assaults purportedly included “shaking the patient, pulling hair, spitting in her mouth … wrapping her up in her own gown,” the complaint stated.  Davis was arrested on June 26.

There were three separate suspected assaults that happened between Jan. 29 and March 15, according to the criminal complaint.

The Ethics of Tube Feeding

Posted in Advocacy

The Hill had an interesting article written by Dr. Seres about the unnecessary prevalence of surgically implanted feeding tubes.  Seres, M.D., is director of medical nutrition, associate professor of medicine and an associate clinical ethicist at Columbia University Medical Center, New York Presbyterian Hospital.  Patients needing longer-term feeding, a surgically placed tube, often referred to as a PEG, is unfortunately favored. Assumed to be safer, more comfortable and more secure, the surgical tubes may be placed by a gastroenterologist, using a scope, under sedation and local anesthesia, sometimes even in the frailist of patients. Research, however, has not demonstrated that these are safer, more comfortable or more secure. In fact, Dr. Seres’ research shows the incidence of adverse events associated with these tubes is twice as frequent as, and are often far more severe than, those occurring with the nasal tubes.

“Many patients have difficulty swallowing after a stroke or other severe illness. Recovery of swallowing is frequently possible, and sometimes rapid. But if eating is unsafe or too difficult for some time, a temporary feeding tube may be placed through a nostril and into the stomach. The tube, not much larger than a well-cooked piece of spaghetti, is gently inserted through the nostril using a lubricant. The procedure, which may sound awful, is in proper hands only minimally uncomfortable.”

Based on data recently published, nursing homes are refusing to allow admission of patients with these temporary, nonsurgical nasal tubes, requiring instead that a surgical procedure for the placement of a feeding tube be performed. These policies are inconsistent from region to region, do not consider the amount of time the tube is anticipated to be needed and are contrary to research that favors neither the surgical or nasal method. In New York City, we found that 80 percent of nursing homes refuse nasal tubes, compared to only 35 percent in a large random national sample.

“In biomedical ethics, no single concept is more important than patient autonomy: the ability to determine what happens to one’s body. Moreover, we clinicians all commit to doing no harm. While clearly motivated by fear of harm from the nasal tubes, misguided nursing home policies — rather than medical indications — are driving practice. Because of the rigidity of these policies in the effected regions, tube-fed patients needing nursing-home care cannot be discharged from the hospital unless the surgical tube is placed. The patients, their families and those caring for them in hospitals face a distressing moral dilemma: force an unnecessary surgical procedure on the patient or face not being able to discharge them from the hospital.”

“This practice is driving changes in care throughout hospitalization. The medical literature is full of reports of patients undergoing the insertion of the surgical tube while critically ill in an intensive care unit to avoid prolonging the hospital stay, since it is anticipated that the patient will need to be discharged to a nursing home unable to eat at some point in the future. In published reports, including ours, somewhere around 10 percent of patients who have the surgical tube inserted do not survive to discharge. In one study from Penn State University and Johns Hopkins University, most of the surgical tubes had been removed before the surviving patients were even discharged from the hospital. The mortalities are not due to complications of the procedure. But the high death rate and removal before discharge underscore that there are pressures to insert too many of these tubes.”

 

 

$28 Million Settlement for Corporate Looting

Posted in Regulatory enforcement, Verdicts/Settlements

Newsday and Long Island Business News reported the $28 million settlement between Medford Multicare Center for Living and its owners Mordechai Klein; Susan Aschkenazi; Norman Rausman; and Rausman’s kin, Martin Rausman, Michael Rausman and Henry Rausman, all of Monsey and NY Attorney General Eric T. Schneiderman.

The owners were accused of paying themselves millions in public funds while slashing costs that negatively affected patient care.  The owners were accused of corporate looting for diverting $60 million of the $280 million in Medicaid funds toward exorbitant salaries, management fees and charitable donations to their family-controlled private foundations since 2003.  The owners also agreed to adopt a host of reforms to improve the quality of care at Medford including to hire an outside operator and a financial monitor to oversee the 320-bed facility for five years.

“Nothing is more important than securing the safety of those in nursing home facilities, yet, as alleged in our complaint, Medford owners continued to line their pockets with millions in public funding while Medford cut staffing, services and supervision, shirking the duty of caring for some of our most vulnerable citizens,” he added.

Medford is the home where a resident died in 2012 after the staff failed to connect the patient to a ventilator and ignored alarms that indicated the patient stopped breathing.  Aurelia Rios, 72, died Oct. 26, 2012, because seven employees failed to do their jobs, and two others attempted to hide the true cause of her death.

“Today we have taken significant steps to ensure residents at Medford receive necessary and proper care, and that the tragic events of 2012 are never repeated,” Schneiderman said in a statement. “This settlement sends a clear message that those who profit from Medicaid at the expense of nursing home residents will be held accountable.”