South Carolina Nursing Home Blog

South Carolina Nursing Home Blog

Nursing Home Information & Litigation

Failure to Follow Safety Procedures

Posted in Abuse and Neglect, Advocacy, Fall Prevention, Staffing

The Times Union reported that Fiona Jennings, a nursing assistant at Seton Health at Schuyler Ridge, was arrested and charged with endangering a female resident because she failed to properly follow nursing home safety procedures causing a 74-year-old woman to fall from her bed onto the floor and suffer significant bruising and swelling to her forehead as well as two black eyes.  To make matters worse, Jennings failed to report the fall and attempted to cover up what happened, according to the attorney general’s office.  Jennings was arraigned on charges of first-degree endangering the welfare of an incompetent or physically disabled person, a felony, and willful violation of health laws, a misdemeanor, Schneiderman said.

Wrongful Death Not Bound By Arbitration Agreement

Posted in Arbitration

McKnights reported that the U.S. Supreme Court has decided to decline to review a decision by the Oklahoma Supreme Court regarding whether or not a pre-incident mandatory arbitration agreement allegedly signed by a deceased nursing home resident during admission is binding on family members as wrongful death statutory beneficiaries.  Family members of a deceased Oklahoma nursing home resident won’t be compelled to arbitrate claims against her facility because they hadn’t signed the arbitration contract.

The case reflects a national debate on whether survivors of deceased nursing home residents can take claims against facilities to court, despite the resident signing an arbitration agreement prior to his or her death. So far Florida, New Mexico, California, Texas, Mississippi, Alabama and Michigan courts have ruled survivors’ claims must be arbitrated, while Arizona, Pennsylvania, Kentucky, Illinois, Washington, Missouri, Utah and Ohio said they don’t have to be arbitrated.

“Consent to arbitrate is an essential component of an enforceable arbitration agreement,” the state supreme court justices ruled.  The Oklahoma Supreme Court said that the results differ from state to state due to the way each court interprets its state’s wrongful death law. States in favor of arbitration reason that heirs’ claims are derivative of any claims made by the resident before death, and those claims must be arbitrated since the heirs “stand in the shoes” of their deceased relative.

Building Better Nursing Homes

Posted in Advocacy, Staffing, Trial themes

The Atlantic had an interesting article on how to improve the quality of care in the nursing home industry.  “Nursing homes have been run the same way for decades, in part to meet government regulations and to qualify for government payments such as Medicare and Medicaid.”  A better nursing home would look totally different from the traditional model. It would be based on innovative experiments from elsewhere, and it would accept people of all different incomes, as well as non-elderly people with debilitating diseases such as ALS and MS. It would be a home, not a hospital, no matter how sick residents were, and it would allow them to make their own choices and live their own lives.  One facility has done that–The Leonard Florence Center for Living—opened in 2010—in an effort to transform the nursing home where he’d first put his mother into a place that looks more like the Leonard Florence Center.

America is aging, and still hasn’t come to terms with it. By 2050, one-third of the population of the U.S. will be 65 or older, according to the Congressional Budget Office. About 4 percent of the population will be 85 or older, and more than half of them have difficulty performing one or two “activities of daily living,” which include bathing, dressing, eating, walking, transferring out of a bed or chair, and using the toilet, the CBO says.”

Studies have shown significant rates of depression among nursing-home patients, and anticipation of being placed in a nursing home can lead to patient suicide.  “Our elderly are left with a controlled and supervised institutional existence, a medically designed answer to unfixable problems, a life designed to be safe but empty of anything they care about,” wrote Atul Gawande in his powerful book, Being Mortal, about aging and the problems inherent in long-term care.

“When Barry Berman was looking for an alternative to the traditional nursing home, he stumbled across a concept called the Green House Project that seemed promising. It was created by Bill Thomas, a doctor who started working at a nursing home in upstate New York in 1991, and wanted to make residents less lonely. As Gawande recounts in his book, Thomas brought in dogs, cats, and 100 parakeets; and created an after-school program, which brought the residents into contact with kids, with extremely positive results.”

“Thomas persuaded an organization in Tupelo, Mississippi to build the first “Green Houses.” Each home consisted of 10 to 12 private bedrooms, each with its own private bath, arranged around a communal living area and kitchen. In each home, there are primary caregivers called Shahbazim, certified nurse assistants who also handle some food preparation, light housekeeping duties, and plan activities for residents. They work as a team with other Shahbazim, which gives them the ability to manage their own work schedules and make decisions collaboratively.”

“Studies showed that Green House residents experience a better quality of life than people in traditional nursing homes, that their families were happier with the setting, and that the staff were happier with their jobs and more likely to remain in their positions.”

“With funding from the Robert Wood Johnson Foundation, Thomas then created what’s now called the Green House Project, which sought to help non-profits and businesses build Green Houses around the country. Green Houses are all very different, but share a few commonalities—each is designed for just 10 to 12 residents, and are built around a common living room and dining room. Each resident has his or her own bedroom and bathroom, and has a say in the residence’s menu. The other two parts of it are cultural change, which is focused on person-centered care, and organizational change—we use a very progressive organizational model that focuses on empowered teams and a coaching approach to leadership.

People are healthier and happier in Green Houses than they are in traditional nursing homes, and research supports this claim. One study found that Green House residents reported higher quality of life than seniors in traditional nursing homes in subjects such as privacy, dignity, autonomy and food enjoyment. The rate of hospitalization per resident over 12 months was seven percentage points higher in a traditional nursing home than in a Green House, another study found.

“Staff are also happier in Green Houses, studies have shown. That’s an important metric in an industry with high turnover and a reputation for elder abuse (happier staff means lower turnover, which means less hiring, which in turn means less risk of hiring people who may be abusive). Shahbazim say they feel less rushed and are able to spend more time with the elders in their care, and also feel less stress and guilt around their jobs.”



Sex in Nursing Homes

Posted in Advocacy

Time had a great article on the necessity of policies on sexual relationships in nursing homes. When it comes to managing the sex lives of nursing home residents, the problems are not going away. By 2030, nearly 20% of the U.S. population will be 65 or older, according to Pew Research Center. And according to the World Health Organization, there are 47.5 million people with dementia, a number that will nearly double by 2030.

“The need for sex doesn’t disappear as we age, yet many facilities for the elderly have no policy on sex at all and only acknowledge that it happens when there’s a problem, like concern that an Alzheimer’s or dementia patient is being abused. Whether it’s out of ageism or just discomfort with the idea of senior sexuality, nursing homes are not eager to raise the issue, leaving a massive gray area where the line of consent is blurry.”

“The risks of ignoring residents’ sex lives are real. The issue most recently came to light in Iowa, when Henry Rayhons, 78, a longtime state lawmaker, was charged with sexually abusing his elderly wife, an Alzheimer’s patient, while she was living in a nursing home.”

Rayhons was acquitted. The case was complicated by questions of whether someone with dementia can give consent, and whether Alzheimer’s patients have the right to have sex or the right to be protected from it.

“Today’s aging Americans also grew up with fewer sexual limits than earlier generations and may be unwilling to live in nursing homes that don’t accommodate their sex lives, experts say. But elder advocates, physicians and nursing home experts say that there is no national standard of best practices for how nursing homes should accommodate residents who are sexually active. The policies that do exist are archaic, regressive and even ageist, and do not acknowledge that nursing home residents could happily have consensual sex with each other.”

The nursing home industry has failed to adopt policies because of alleged liability.  “The question of whether the elderly should be having sex is most troubling when it comes to dementia. But experts and elderly advocates say people with dementia are capable of consenting to sex, that they are able to express that consent, and that sex and touch can be good for them, which makes it difficult to know when it is appropriate to set limits.”

“Nursing homes must establish policies, and must be comfortable talking about sex with residents and their families, advocates said.”

Nursing Home Industry Is A Solid Investment

Posted in Advocacy, Tort Reform, Trial themes

Dr. Harold Goldmeier wrote an article for SeekingAlpha website explaining why investing in the nursing home industry is a safe bet.  Demographics and profit create a bright future.  The Centers for Disease Control and Prevention estimate there are nearly 16,000 nursing homes with nearly 2 million beds housing 1.4 million residents in the U.S. 68% are privately owned. The American Association of Retired Persons (AARP) pegs the average cost for nursing home care is $50,000 per year and climbing. Many times, the value of a nursing home company is not solely based on the revenues it generates, but on the spiraling equity in beds. In the late 1990s, a bed might sell for $19,000 in a well-groomed, high-end facility. In today’s market accounting for locations and client populations, a bed can sell for upwards of $75,000. Some companies are expanding globally into countries like Ireland, Israel, and Japan with significant aging populations and shifts in government reimbursement ideologies. In England, there is a buy-to-let trend. Individual rooms in a care facility are bought by investors and rented to an occupant until they are released or die. Some investors are getting 10% ROI and capital growth. Profits in this industry have been called “staggering.”

The care of infirm people in special residential facilities who cannot be cared for at home is a multi-billion dollar industry. The 50 largest firms account for 20% of the revenues the industry generates. A guaranteed steady income stream from government reimbursements made the industry profitable attracting private investors. A shortage of beds for the aging population and people with special needs commix with cultural shifts like two-income families and childless homes. Most recently, the trend to reduce the length of hospital stays is a boon to privatization of nursing homes with patients stopping off for rehab before returning home.

  • The nation is aging, and the trend is to improve services to people of all ages with special needs. Nursing home companies will benefit.
  • Profits are staggering, and the nursing home companies have a long list of add-on sales for supplemental services through subsidiaries they control. Big profits are realized in equity valuations.
  • The industry depends a lot on government reimbursements, and cultural factors can affect growth, but three stocks stand out worth considering.

Their primary services are suitable living quarters, meals, bathing facilities, etc. Personal attention to individual needs 24/7, skilled nursing, laundry, personal hygiene, transportation to personal physicians and hospitals, convalescence and therapies, drug maintenance, dental, mental health, dietary, and more are typically available sometimes at additional cost. Some services are part of the overall reimbursements while many others like hospice and home care, physical and occupational therapy generate additional revenues from company billings. One owner of multiple nursing homes I personally know employs 1,500 PTs and OTs through another company who service residents in his homes and facilities owned by competitors. There are drug-dispensing companies with lucrative contracts specializing in servicing nursing home residents. The nursing home owners might own companies providing linens, food service, and doctor visits that generate other revenue streams.
The nursing home industry serves people of all ages. There are highly specialized services in specially designed facilities for pediatric care and disabled children. Some homes will confine the elderly patients with most of their mental capacities to the lower floors, and patients with mental health problems on the upper floors. There are retirement centers for the self-sufficient, and assisted living facilities for those with minimal care needs.

Kindred Healthcare (NYSE:KND) operates in more than 2,700 facilities in more than 47 states. Its $1.8b market cap and annual revenues topping $7b hasFortune including KND on the list of Most Admired Healthcare Companies for six years. Investors receive a 2.1 dividend yield. The stock is currently trading down about 20% at $22.71 from its 52-weeks high of $26.8 and a low of $16.84. On May 6, 2015, KND reported beating estimates by nine cents. KND bought a large healthcare services provider in 2014 for a deal valued at $1.8b. Barclays has set a price target of $36 for KND.

Genesis Healthcare (NYSE:GEN) beat revenue estimates by three cents this last reporting quarter. The stock is down to $6.39 to near its low of $5.75 and from a high of $9.32. The market cap is $972m, but shares traded are generally light. GEN has about 49,000 beds in over 400 facilities. Like many in the industry, GEN is a holding company with subsidiaries in rehab and other services. GEN is a post-acute care provider with more than 500 skilled nursing and living centers in 34 states. Deutsche Bank has a HOLD rating on GEN with a price target of $8. I like it because it might be a target in the M&A consolidation trend rippling through the healthcare industry.

Brookdale Senior Living (NYSE:BKD) appears to be a solid investment opportunity. The company specializes in independent and assisted living facilities. It also operates home healthcare services, hospice, skilled nursing and therapy centers. The stock trades at $37.35 per share near its high despite missing revenue estimates for the last quarter by $1.31 or $20m on revenues of $1.25b (+67.3% year to year), but the company’s earnings of 63 cents per share for the quarter beat expectations by four cents. It has a $7b market cap. BKD operates more than 600 retirement communities employing more than 50,000.


“The July Effect”

Posted in Advocacy, Trial themes

Politico had an interesting article adapted from author Alexandra Robbins’s work: The Nurses: A Year of Secrets, Drama, and Miracles with the Heroes of the Hospital.  As Robbins states “If you want to know what’s really happening in a medical building, don’t ask a doctor. Instead, turn to the best-informed, hardest-working and savviest professionals in health care: Nurses.”  Below are excerpts from the article.
Don’t get sick in July. Every year in teaching hospitals at the start of July, medical students become interns, interns become residents and each successive class of residents moves up a level. These new doctors are immediately thrust into direct patient care. As the National Bureau of Economic Research reported, “On day one, new interns may have the same responsibilities that the now-second-year residents had at the end of June (i.e., after they had a full year of experience).”
This upheaval causes what health care workers call “The July Effect” in the United States and “August Killing Season” in the United Kingdom (where the shift happens in August). The changeover harms patient care, increasing medical errors, medication mistakes and the length of hospital stays. In July, U.S. death rates in these hospitals surge between 8 and 34 percent—a total of between 1,500 and 2,750 deaths. UC-San Diego researchers found that fatal medication errors “spike by 10 percent in July and in no other month.” In Britain, August mortality rates rise by 6 to 8 percent as new doctors are tasked with surgeries and procedures that Britons say are “beyond their capabilities.” Patients in English hospitals have a higher early death rate when they are admitted on the first Wednesday in August than patients admitted on the previous Wednesday.

Some doctors and nurses are placing bets about you. Several nurses around the country confessed that hospital staffers have wagered on patients. “Guess the Blood Alcohol” is a common game, where actual money changes hands. Other staff members try to guess the injuries of a patient arriving via ambulance. And surgeons have been observed playing “games of chance” during operations, placing bets on outcomes of risky procedures.

There are “codes” … and there are “slow codes.” Some medical teams have a hush-hush way of dealing with discrepancies between a patient’s Do Not Resuscitate order and family members’ demands. In hospitals, as a Missouri nurse told me, “There are lots of unsavory things that the polite public would make hay with.” While many people know from medical shows what a “code” means—a patient in cardiopulmonary arrest—most people don’t know about the “slow code.” Various units have different designations; at a Canadian hospital, medical teams distinguished between a full code, which they called “code 55,” and a slow code, or “code 54.”

Some physicians will unofficially call a “slow code”—which will never appear in a patient’s chart—if a coding patient is elderly or chronically ill. The signal notifies a team that they are not expected to revive the patient but should go through some of the motions anyway. “Responders literally walk slowly, are slow to respond, give medications slowly or hesitate to intubate so that the patient is unlikely to be revived,” said a Midwestern nurse.

Your DNR might be ignored. While some nurses said that at their hospital patients with signed, current Do Not Resuscitate order are not resuscitated, several nurses told me that saving patients with DNRs “happens all the time.” The most common scenario occurs when an elderly or chronically ill patient with a DNR requires resuscitation and a family member tells the medical team to save the patient. Particularly if the family member has power of attorney (POA), nurses said he or she can change the plan of care.

“Theoretically we’re supposed to honor the DNR, but oftentimes the family will want the patient treated because they see the DNR as ‘giving up.’ Often a family member is a POA and has the legal right to make medical decisions even if it overrides the DNR,” said a travel nurse based in Texas. “Families want us to ‘do everything’ and if we let the patient die, we’re accused of killing them by refusing care. Basically it’s a lose-lose scenario.”

Sometimes we put alcohol in your feeding tube. If a patient with a history of alcohol abuse needs open heart surgery, a Maryland Cardiac Surgical ICU nurse said, he or she might get alcohol (supplied by the pharmacy) with hospital meals or through a feeding tube to prevent alcohol withdrawal symptoms such as elevated heart rate, anxiety and shaking. A nurse in an Oklahoma cardiac unit who has administered this treatment to a patient said that, on physician’s orders, the pharmacy brought 60 mL of bourbon each night to the nurse and watched her pour it down a nasogastric tube. While this method is considered old school—hospitals more often give patients Ativan—“It is funny to say that you gave your patient a shot of bourbon as a medication order,” the nurse said.

That’s going in your chart. Ever wonder what nurses are writing in your patient chart? Everything. If you say something offensive or off-the-wall, nurses chart it. If your family member creates issues, that goes in the chart, too. “I always chart when a patient is difficult or belligerent. I keep it objective and write direct quotes; it’s funny to have to type ‘Fuck you, bitch’ in medical documentation,” said Molly. If a patient later sues the hospital, the documented evidence can diminish the patient’s credibility.

You might not need the surgery your doctor says you need. Some nurses said that doctors “bully” people into having unnecessary tests and procedures. “If I could talk to my open heart surgery patients before the surgery, I would probably advise 30 percent of them not to have surgery,” said a New York nurse. “Our fee-for-service health care system incentivizes doctors and hospitals to advise aggressive, high-cost treatments and procedures. Doctors undersell how much rehabilitation the successful recovery from heart surgery requires. Most patients tell me they didn’t know the recovery would be as difficult as it is. Every time I see patients over 85 opt for an aortic valve surgery because they were becoming short of breath on exertion, I scratch my head a little bit because I know that many of these high-risk patients will not get back all the faculties they had before the surgery, and some won’t even make it out of the hospital.”

TV shows don’t get it right. In reality, nurses manage many of the duties that viewers see doctors performing on TV, such as inserting an IV or catheter. “I laugh when I see shows like House or Grey’s Anatomy where doctors are pining at the bedside of patients, giving them medications or administering treatments. Doctors do nothing of the sort,” says an Arizona clinical education specialist. “They come by once a day, take a short look at the patients, review their chart, make orders, and leave.”




Push to Allow CFPB to Prohibit Manadatory Arbitration

Posted in Arbitration

Sen. Al Franken led a group of 57 U.S. lawmakers who urged the Consumer Financial Protection Bureau (CFPB) to issue new rules “swiftly” that would eliminate the use of forced arbitration clauses in consumer financial service contracts, which can include nursing home admission contracts.  Franken and 41 U.S. House members and 16 of his colleagues from the Senate insisted that forced arbitration clauses can prevent consumers from getting legal relief; instead arbitration puts victims of neglect at a disadvantage. The lawmakers reiterated that Congress directed the CFPB in the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) to study forced arbitration clauses and gave the CFPB express authority to issue regulations to prohibit or limit these clauses in consumer financial contracts.
 “These clauses force individuals into private binding arbitration as a condition of buying a product or service, and are designed to stack the deck against consumers and ensure that the final outcome of forced arbitration is unreviewable by courts,” the lawmakers said in a letter to CFPB director Richard Cordray that was delivered last week.  “Forced arbitration clauses — often buried deep within the fine print of financial products and service contracts — harm American consumers by depriving them of their day in court even when companies have violated the law,” they continued.

The lawmakers maintained in their letter that the bureau’s study found not only that more than three in four consumers were unaware of forced arbitration clauses in their contracts, but also that consumers rarely use arbitration on an individualized basis, especially for small-dollar claims, and that there is no evidence that forced arbitration lowers costs for consumers.
“In total, the study conducted by CFPB at Congress’s request roundly confirms that individuals unknowingly sign away their rights through forced arbitration agreements, which do not reduce consumer costs for financial services,” the lawmakers said. “Moreover, forced arbitration shields corporations from liability for abusive, anti-consumer practices, encouraging even more unscrupulous business conduct at the expense of individuals and law abiding businesses.

“Based on this substantial bedrock of evidence, we urge the CFPB to move forward quickly to use its authority under the Dodd-Frank Act to issue strong rules to prohibit the use of forced arbitration clauses in financial contracts and give consumers a meaningful choice after disputes arise,” they went on to say.

To see the complete letter and which lawmakers signed it, 150521CFPBarbitrationLetter.

NH Caregivers: Overworked and Underpaid

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

Ring of Fire wrote an interesting article on one of the causes of neglect at nursing homes:  overworked and underpaid CNAs.   One of the causes of the ongoing scandals of elder abuse in nursing homes and assisted living facilities is the fact that the understaffed caregivers are physically, mentally, and financially struggling. Case in point – Nicole Jefferson, a certified nursing assistant. In a recent guest column she wrote for the Hartford Courant, she stated:

It’s hard, tough demanding work, but I love my job. I genuinely love taking care of people. . . . I have been a nursing home worker for three years and I make only $12.35 per hour. I spend all day taking care of other people’s family members and, at the end of the day, I can’t even provide for my own.

She points out that most nursing home employees wind up on public assistance – much like many employees of big-box stores and fast food chains.  Although nobody who works a full-time job should have to live in poverty, there is a difference: caregivers such as Ms. Jefferson must have training and education beyond high school. Even at a two-year community college, this comes at a cost, and usually involves incurring student loan debt.

Given that these people work such long hours, doing such difficult work for so little, it should not be surprising that elder care facilities have difficulty attracting competent, high-quality employees. As a result, it should come as no surprise that many nursing homes hire whomever they can get – and screening is often spotty, if done at all. Although forty-three states require background checks for prospective employees (there is no federal statute governing this), the Office of Inspector General of the federal Department of Health and Human Services found that over 90% had at least one employee with a prior criminal record. Forty-four percent of these were for property crimes, such as theft (disappearance of personal items and unexplained depletion of funds are a common problem at nursing homes). Sixteen percent were drug-related, while just over 13% involved crimes against persons, such as rape and assault.

Would higher wages and better working conditions make a difference?  Ms. Jefferson, who is among the nursing home employees currently lobbying the state of Connecticut for higher pay, seems to think so. She says: “a budget is a moral document…an expression of what a society values and thinks is important.”

Matt Schultz, an elder abuse attorney with Levin Papantonio, said: “society needs to place much more value on the health and well-being of our elders. We must be willing to pay to protect the mothers, fathers and grandparents who raised us, and make certain they receive the best care from workers who aren’t distracted by how they will pay next month’s bills and feed their own families.”

Listen to Your Loved Ones

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

WoodTV reported the horrific accusations against caregiver, Tyler Malone, who is accused of throwing shoes and water at a 86-year-old patient, as well as threatening to sexually assault the victim with a stuffed animal.  Malone is charged with second-degree vulnerable adult abuse and stalking against a patient at the Lifehouse Crystal Springs Retirement Home — second-degree vulnerable adult abuse is a felony punishable by up to four years in prison. Stalking is a one year misdemeanor. His bond was set at $25,000, and he is being held at the Kent County Correctional Facility.

“We started to notice a lot of phone calls and complaints coming into us, telling us about some strange and weird stories like someone is throwing shoes at her and throwing water on her. And she’s crying and wants to get out of there so badly,” David said.  David is one of the victim’s sons. He said his mom was checked into the Lifehouse Crystal Springs Retirement home last year because she has Alzheimer’s.  The family was told by staff not to worry, that it was the disease talking.

Another staff member tells police she overheard Malone tell the victim he was “the doctor” and was going to sexually assault her. When the staff member walked into the room, the victim stated “don’t let the doctor hurt me.”  It was an employee David says that pulled his sister aside one day and told her they needed to believe their mother. David says he wishes they would have believed his mom sooner.

According to court records, Malone was a resident assistant at the home, and treated the 86-year-old patient. The victim’s family says that Malone threatened to sexually assault the victim with a stuffed animal. The victim’s family contacted police, saying Malone was harassing the victim by repeatedly calling her phone, throwing shoes and throwing water on her.

It was so bad the victim would frantically call her children in the middle of the night requesting that she be picked up and remove her from the home.  “We came over to visits and the room was just a cyclone, shoes thrown and glass and busted things all over. Lamps broken and she denied it all the time but before we checked her in she wasn’t doing that kind of stuff,” David explained.

Malone was fired from Lifehouse Crystal Springs Retirement Home and was later hired by American House Senior Living Communities.