AARP Briefs on Arbitration

AARP reported that AARP filed briefs in two cases arguing that signing a health care proxy regarding end-of-life decisions does not waive a nursing home resident’s right to have a jury decide his or her case.  The two disputes are now on appeal. Attorneys with AARP Foundation Litigation filed AARP’s friend-of-the-court briefs in both cases in conjunction with the National Academy of Elder Law Attorneys, arguing that signing a health care proxy is vastly different from signing over all legal rights. In particular, the right to a jury trial for disputes is a fundamental individual right enshrined in the state constitution that could not be waived ambiguously.

In 2011, Stephanie Johnson Leslie and Barbara Johnson – co-administrators of the estate of Dalton Johnson – filed a wrongful death lawsuit against the nursing home.  Defendants moved to dismiss the proceedings based on a clause in his nursing home admission contract that sent all disputes to arbitration, and a trial court agreed.

Plaintiffs argue that although Dalton Johnson had signed a health care proxy that was to govern specific medical decisions regarding end-of-life options, he had not given away his decision-making authority about all contracts. Specifically, he had not authorized anyone other than himself to make decisions about whether to obligate himself to arbitrate future disputes. Arbitration is a dispute resolution mechanism designed for business-to-business transactions and it does not provide the same public scrutiny, right to a jury trial, right to access evidence, adherence to precedence and other procedural protections lawsuits do; it can also be significantly more expensive.

Similarly, Rita Lacita suffered from Alzheimer’s and was admitted to a nursing facility run by GGNSC Malden Dexter. Her son admitted her to the hospital and while there signed the paperwork discharging her to GGNSC without fully understanding what he was signing and believing that if he did not sign all the documents the facility would not admit his mother. When he sued for wrongful death, that trial court found that the Massachusetts health care proxy statute permits agents only to make health care decisions, and the scope of that role did not include the authority to waive the right to seek legal redress in court.

In planning for incapacity and surrogate decision making, people consider who will be suited and qualified to make specific and separate decisions in the event of incapacity – decisions regarding financial matters are different from health care matters and require different skill sets. Merely designating a qualified health care agent does not indicate this person is intended to combine both roles. If a health care proxy is regarded as tantamount to a power of attorney for all affairs, people will be left at tremendous risk of signing away significant rights while assuming they are merely designating a medical decision maker.

Johnson v. Kindred and Licata v. GGNSC Malden Dexter are both before the Appeals Court of the Commonwealth of Massachusetts.

 

Pioneer Accountable Care Organization program

Politico reported on a pilot program in ObamaCare. In an experiment under the Affordable Care Act, the Pioneer Accountable Care Organization program, were all able to improve patient care. Some were even able to lower Medicare costs.  The program’s results are similar to results found in the private sector, says Mark McClellan, former CMS administrator. The program is trying to reduce health care costs by increasing the health of patients through quality of care and reducing hospitalizations. In doing so, the results won’t spell immediate success for most organizations. McClellan advises that in a year, year and a half, or two years time, we will begin to see serious improvements in the health of patients, and a direct link to lowered Medicare costs. The Pioneer ACO will continue in the experiment, although some of the providers have left the program.
 

Substandard Care is the New Normal

In a recent report in Wisconsin, 40 nursing homes have been listed as having a ‘substandard quality of care.’  See article at WAOW.  This tag comes with additional federal scrutiny on the homes, many of which have a history of violations and citations. Some were even on the list in 2011, marking them as consistently below the line when it comes to quality of care. The substandard homes are being watched more closely by the state and federal authorities, prompting a more immediate response to violations and citations than in the past.

Additionally the homes aren’t allowed to train new CNAs for a period of two years after the listing. The list may be a good thing, resulting in extreme watchfulness and immediate action, but if it is such a strong list to be placed on, how come homes have been on the list more than once?   If authorities responded immediately to violations and citations, and the list was a strong deterrent to providing poor quality of care, then something is getting lost in translation, because homes are staying on the list – not improving, not closing, but maintaining a state of care that is substandard.

Is that where you want your loved one to be?

Lawsuits Improve Health Care

The NY Times reported on a new report that indicates that lawsuits improve the quality of health care because providers learn from their mistakes. "New evidence, however, contradicts the conventional wisdom that malpractice litigation compromises the patient safety movement's call for transparency. In fact, the opposite appears to be occurring: the openness and transparency promoted by patient safety advocates appear to be influencing hospitals' responses to litigation risk."

Lawsuits can also reveal errors that should have been reported but were not — medical providers notoriously underreport errors (although studies have shown that the threat of litigation is not responsible for this underreporting) and lawsuits may fill these gaps.

Experts agree that the best way to reduce medical error is to gather and analyze information about past errors with an eye toward improving future care.  Full disclosure and transparency is the best way to improve safety and prevent injury.  Several factors appear to have overcome resistance to transparency, including widespread laws requiring disclosure to patients.  Hospitals have also found that disclosing errors to patients and offering early settlements reduces the costs and frequency of litigation.

 

Fundamental Sells 2 Facilities

The Nashville Post reported that National Health Investors has paid more than $26 million for two skilled-nursing homes in the Dallas area. Murfreesboro-based NHI bought the facilities from Fundamental Long Term Care Holdings, which runs care centers in more than a dozen states around the country.  NHI funded its purchase with from borrowings from its revolving credit facility.

Combined, the two centers in Corinth and Canton, Texas, are home to 254 beds. Both are less than two years old and are now being leased for 10 years by agents of Sparks, Maryland-based Fundamental owned and operated by Murray Forman and Leonard Grunstein.  NHI will take in $2.4 million in annual lease payments.

 

Bills to Improve Staffing and Safety

Hundreds of Pennsylvania nursing home workers recently gathered in the State Capital to support three proposed bills that would increase standards.  Pennsylvania Senate bills 624, 625 and 626 would require nursing homes to meet a minimum level of nurse aide staffing, report turnover and staffing levels to the Department of Health, and spend a minimum amount of their Medicaid resident care per diem rate.

An analysis by the workers show nearly 30 percent of Pennsylvania facilities did not spend at least 95 percent of their resident care Medicaid component amount on resident care costs in fiscal year 2011 while nursing homes generated more than $500 million in profits in 2011, with a total margin near the national level of 4.7 percent.  The report also said that 54 percent of survey workers said their facility is only sometimes adequately staffed, and 27 percent say their facility is never adequately staffed.  A 2012 survey of nursing home workers across the state showed that 12 percent of employees work more than one job and 11 percent receive public assistance. 

 

Increase Staffing in Kansas

The Consumer Voice released the testimony of Mitzi E. McFatrich, Executive Director of Kansas Advocates for Better Care on HB 2348 to increase nursing staffing minimums in nursing facilities.

"My name is Mitzi McFatrich and I am here today to speak up for increasing the hours of nursing care received by older adults living in nursing facilities. KABC is a not for profit, whose 850 members and volunteers are dedicated to improving the quality of care for older adults needing long-term care.

Correlation between Nursing Care and Elders Outcomes
There is one reason that adults go to Kansas nursing homes--Nursing Care. There are approximately 19,000 adults living in Kansas nursing homes.  There is an indisputable correlation between the number of nurses (registered and licensed practical) who provide direct care to residents on a daily basis (“nurse staffing” levels) and the quality of care and outcomes, along with the quality of life older adults experience. Numerous reports and studies confirm that nursing facilities provide better care to their residents, and residents have better outcomes, when facilities are adequately staffed.  No report finds better quality with fewer staff.1

Current Minimum Nursing Staffing Standard in Kansas
The current Kansas minimum standard set for nursing care per adult is 1.85 average hours
in 24 hours with a weekly average of 2.0 hours per adult per day.
Nursing staff is defined as Registered Nurses, Licensed Practical Nurses, Certified Nurse
Aides, Certified Medication Aides and Paid Nutrition Assistants.
The current minimum standard was set over 30 years ago.
The nursing staff to resident ratio is - 1 nursing staff for every 30 adult residents.
The minimum standard translates to:
• RN .08 hprd or 4.8 minutes for each older adult in 24 hours,
• LN .48 hprd or 28.8 minutes,
• Nurse Aide 1 hour & 26.4 minutes,
• Direct Care 2.0 hprd or 2 hours (combined RN, LN, Nurse Aide)
Total 2.06 hours per resident day or 2 hrs. and 3.6 minutes. (Kansas standards from
“Nursing Home Staffing Standards in 50 States”, by researcher Charlene Harrington,
University of California, San Francisco, 2002 and 2010)
Level of patient acuity for adults in nursing homes has substantially increased over the same
30 year period. However, there has been no corresponding increase in the minimum standard
for nursing care hours
.

Recommended Standard for Minimum Nursing Staffing
The Centers for Medicare and Medicaid Services (CMS) study completed in 2001 identified
minimum staffing thresholds below which residents were at significantly greater risk of harm. These thresholds range from 4.1 to 4.8 hours per resident per day (4 hr. 6/48 min.)
Hours were allotted as follows:
• 2.8 hours per resident per day for nurse aides,
• 1.3 hours for RN and LPN combined staff time, and
• .75 hours for RNs.

Harm to Elders below Recommended Minimum Standard
Older adults receiving care in facilities where nursing staffing hours fell below the minimum
staffing thresholds were at significantly greater risk of:
1. hospitalization for potentially avoidable causes,
2. lack of functional improvement (physical and mental),
3. incidence of pressure sores and skin trauma,
4. lack of improvement in resisting assistance from staff (a sign of problems in the
relationship between residents and staff), and
5. weight loss
“Appropriateness of Minimum Nurse Staffing Ratios in Nursing Homes”, Report to
Congress: Phase II Final Volume I

Each nursing facility shall 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.
(a) Sufficient staff. The facility shall employ sufficient numbers of each of the following types of personnel to provide nursing care to all residents in accordance with each resident's comprehensive assessment and care plan.

“The cost of poor care in America’s nursing homes is staggering, whether it is measured by
poor health outcomes and the number of lives lost, or by the amount of money spent on
treating preventable conditions. While the trauma inflicted upon nursing home residents and
their loved ones is not easily categorized and calculated, the financial costs are quantifiable.
The financial burden of poor care rests not only on individuals and families, but also on all
American taxpayers, through Medicare and Medicaid.” -- The High Cost of Poor Care: The
Financial Case for Prevention in America’s Nursing Homes; the Consumer Voice; 2011
Quality Care Assessment Fund.

It Is Time To Improve Care and Outcomes
It is well past time that Kansas reviews the minimum standard for nursing care to elders.  Of the hundreds of calls KABC receives each year the overwhelming majority of callers raise concerns related to the lack of nursing staff to assist an elder resident, or lack of knowledgeable, trained staff to adequately address an elder’s health care needs.  On behalf of elder Kansans, we ask you to approve and pass out of Committee, HB 2348 which will address the need for increased nurse staffing minimums to the level determined necessary to maintain functional levels and protect adults from illness, injury, death.

Respectfully,
Mitzi E. McFatrich, Executive Director
Kansas Advocates for Better Care
913 Tennessee, Ste. 2, Lawrence, KS 66044
785-842-3088 info@kabc.org www.kabc.org

1 Toby S. Edelman and Charlene Harrington, “An Analysis of the Shirlee Sharkey Report
on Long Term Care Homes Human Resource Iss
 

Comfort Care

ElderBranch issued a press release about palliative care at nursing homes.  Nursing homes largely do a poor job when it comes to palliative care today.  According to the Center to Advance Palliative Care, half of nursing home residents suffer from untreated pain. Comfort care and symptom management are lacking and hospice is under-utilized. With as many as 25% of people passing away in a nursing home setting, high quality support and care for the dying is critical in these environments.

Dr. Temkin-Greener, of the University of Rochester Medical Center, cites the lack of nursing home-specific palliative care practice guidelines, inadequate staff education and the failure to integrate palliative care practices into regular care as some of the key barriers to nursing homes offering high quality, comprehensive palliative care today.

ElderBranch is an online information portal that helps people find and evaluate long-term care providers. ElderBranch’s mission is to support users in making the best decision possible for themselves and their loved ones.

 

Health Care Spending Flattens

USA Today had an interesting article on health care spending since enactment of ObamaCare.  In the four years leading to expanded health insurance, the government has used authority in the Patient Protection and Affordable Care Act to try to reshape the economics of health care through regulation and financial incentives. That appears to be keeping a lid on medical costs.  One big change is the government's revived push toward managed care. The government wants to pay a lump sum for a patient or diagnosis, demand higher standards and expect the medical provider to get the job done for that cost. Rather than cutting reimbursement rates, the government is raising the bar for what it expects for every dollar it spends.

 "Health care spending last year rose at one of the lowest rates in a half-century, partly the result of cost-saving measures put in place by the 2009 health care law, a USA TODAY analysis finds."  "Health care spending hit a record $2.67 trillion last year, but its share of the overall economy shrank, from 17.12% of gross domestic product in 2011 to 17.04%, ... an analysis of Bureau of Economic Analysis data found."

"Cost-saving measures under the health care law appear to be helping keep medical prices flat, according to health care providers and analysts."   In 2012, the average price paid for medical care rose at about the same rate as other prices in the economy, an inflation rate of less than 2%.

Also keeping costs lower:

Government insurance. More people are getting health insurance from Medicare and Medicaid, which pay less to doctors and hospitals than private insurers. Medicaid, which pays the least, covers 56 million poor people, up 10 million from five years ago. It will add nearly 20 million enrollees next year.

Generic drugs. About four of five drugs used today are less expensive generic medicines. The nation's top-selling drug, Lipitor, for high blood pressure, lost patent protection last year.

Competition. Health care exchanges, which start next year, may keep insurance prices down while limiting consumer choice. In early deals, hospitals and doctors are agreeing to lower rates than traditional private insurance in exchange for more volume.

Among the most visible successes are efforts to save money on the most expensive patients by permitting the use of a hospice rather than a hospital for end-of-life care and emphasizing home health care over nursing homes.

 

The Price of Emergency Care

The price tag of American medical services has been increasing for years, but this new study finds that the price for an average ER trip has become more than what some people spend on rent.  A new NIH study found that the average cost of an Emergency Room visit was over $2000, 40% more than most people spend on their rent each month. ER trips can have a large price tag, but because of the range in pricing, most Americans have no idea what the final cost will be. This study finds that when the IQR, interquartile range, is factored in, Americans pay more or less than the average prices of these services. The study looks at the most common reasons for visiting the ER and doesn’t factor in how much of the cost will be paid by insurance.

The IQR represents the difference between the 25th and 75th percentile of charges, meaning that it shows the variation between charges. The study looks at the top 10 most common reasons for visiting the ER: sprains and strains, other injury, open wounds, normal pregnancy/delivery, headache, back problems, upper respiratory infection, kidney stone, urinary tract infection, and intestinal infection. The average charge and the IQR are compared. This study shows that what people should be charged, the IQR cost, is rarely what they’re charged. In almost all instances, the average charge is higher than what it should be.

If the median IQR is what most people should pay, why are some people paying more and some people paying less? The healthcare system needs more transparency in its pricing and cost evaluations. Because when people do the math, it just doesn’t add up.
See article at ThinkProgress.