South Carolina Nursing Home Blog : South Carolina Nursing Home Lawyer & Attorney : Poliakoff & Associates Law Firm : Elderly Care, Senior Care

Nursing homes continue to object and try to prevent residents from getting copies of medicaid and medicare cost reports despite the fact that this are public documents and federal regulations require the disclosure of the documents.  When the nursing home objects, inform the Court about the specific regulation requiring disclosure:

42 U.S.C. §1395i-3(g)(5)(A) which states,

Each State, and the Secretary, shall make available to the public–

(i) information respecting all surveys and certifications made respecting skilled nursing facilities, including statements of deficiencies, within 14 calendar days after such information is made available to those facilities, and approved plans of correction,

(ii) copies of cost reports of such facilities filed under this subchapter or subchapter XIX of this chapter,

(iii) copies of statements of ownership under section 1320a-3 of this title . . .
 

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Florida's "right to know" constitutional amendment that allows patients to check records of medical mistakes by health care providers doesn't apply to nursing homes according to the Florida Supreme Court.

The decision in Benjamin v. Tandem Healthcare, Inc. came in a lawsuit over the death of Marlene Gagnon, a nursing home resident who choked to death on food specifically served to her against her doctor's orders.

The decision allows the nursing home to hide relevant and material information from her estate.  This includes the nursing homes nondisclosure of an incident report on Gagnon's death.  The amendment itself says it covers "health care facilities" and "providers" as defined in general law.

The high court arbitrarily decided that state law doesn't include nursing homes among health care facilities.  "They basically said nursing homes do not provide health care," said Jeffrey Fenster, a lawyer for Gagnon's five children. "This strips constitutional rights from the elderly. ... This is just an invitation to more elder abuse."

The amendment never was intended to apply to nursing homes because it refers to "patients" and people in nursing are considered "residents" under state law, said Tony Marshall , association senior vice president.

The amendment was put on the ballot through a petition drive sponsored by consumer advocates. It was one of three initiatives dealing with medical malpractice adopted in 2004, including one that bars doctors with three malpractice judgments from practicing. The third, promoted by the Florida Medical Association, limits how much lawyers can collect in fees.

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I realize that this post might be a bit off topic but it shows the arrogance of insurance companies and their contempt and disdain for the rule of law.  Nursing home attorneys routinely see this when the insurance companies refuse to provide nursing home records or when they state an elderly resident's life is not worth much because "they were already going to die" or when they blame neglect on resident complaince.

Allstate Insurance Co. told a judge that they refuse to produce key records to the Court no matter how much the Court fines them.  Judge Michael Manners has already fined them $25,000 a day since mid September — a total of $2.4 million and growing.

Last month the Missouri Supreme Court ordered the documents produced. At issue are the so-called McKinsey documents which show how Allstate set up a claims scheme in the 1990s that shortchanges clients while earning the insurance company huge profits.

Allstate still refuses to disclose the damaging documents.

The case stems from a car wreck seven years ago on Interstate 70. Allstate client Paul Aldridge of Hawaii ran into the back of a truck and severely injured the driver. He is suing Allstate for bad faith for refusing to pay the claim for years.

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