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

Gov. Arnold Schwarzenegger signed into law two bills that increases transparency requirements for nursing homes in California.  Both bills confront the failing quality of care in nursing homes created by the lack of transparency in the ownership and management structure of these facilities. 

State law (A.B. 1457) will require licensees of a nursing home or skilled nursing facility to disclose the name and contact information of the person accountable for both patient care and facility operations with each abbreviated admissions contract.  The law also requires a facility issue a written notification to residents and their primary contacts in the event the facility changes ownership.

The California Department of Public Health indicates that from January 1, 2007 through December 31, 2008, it received 135 Skilled Nursing Facilities change of ownership applications, and it approved 115. "Nursing home abuse and neglect continues to be a serious problem in the United States.  According to a report conducted by the Inspector General of the Department of Health and Human Services, 94 percent of all for-profit nursing homes were cited in 2007 for violations of federal health and safety standards," said Assemblyman Mike Davis (D-Los Angeles), author of AB 1457.  Davis contends that the new law's notification requirements "will help ensure quality care in nursing homes." California is home to roughly 1,200 nursing homes, more than any other state in the country, according to the California Health Care Foundation.

According to the California Health Care Foundation, California has more Long Term Care (LTC) providers than any other state: some 1,200 nursing homes, 14,000 residential care settings with varying levels of care, and a vast array of community-based services.

The Governor also signed legislation (A.B. 215) requiring California nursing homes to post their five-star rating issued by the Federal Government's Centers for Medicare and Medicaid Services. The rating, with five stars being the highest and one star the lowest, includes medical care, staffing levels, food services, sanitation, bedsore mitigation and the results of licensing inspections.

"The nursing home grading system will provide families vital information about the quality of care for their loved ones as the County's successful Restaurant Grading system equips them to make informed decisions about dining establishments," said Supervisor Michael D. Antonovich. "It also provides incentives for facilities to establish higher quality standards and compliance."

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The Des Moines Register has an interesting story about Congress considering legislation that would eliminate taxpayer funded bonuses to nursing homes. Nursing homes around the country are getting hundreds of millions of dollars in taxpayer funded bonuses despite history of violations.

The legislation is an amendment to the budget bill that has been debated by Congress. The amendment was accepted by unanimous consent of the Senate on Thursday, but the bill itself has yet to be approved. The Des Moines Register reported last November that nursing homes throughout the country are earning hundreds of millions of dollars in taxpayer-funded bonuses despite violations of basic health-and-safety standards.

Nationally, the total cost of the bonuses is unknown. The Centers for Medicare and Medicaid Services, which approves and helps fund each of the bonus programs, does not track the payments. Currently, there are 81 bonus-payment programs in 36 states.  How and why do not they not track these bonuses?  Why would we give bonuses to profit-driven companies that short change residents on care and essential activities of daily living such as eating, bathing, and hygiene?  What a waste of taxpayer money!

The Register examined eight programs in the seven states where recent regulatory violations don't disqualify a nursing home from receiving a bonus that is touted as being directly related to quality care. Those eight programs cost taxpayers $312 million per year. Some of the largest bonuses to poor-performing homes have been in Oklahoma, the home of Republican Sen. Tom Coburn, a medical doctor. Coburn authored Thursday's amendment, telling his Senate colleagues that taxpayers shouldn't be billed for bonuses paid to inferior care facilities.

"We paid out in excess of $300 million in bonuses to nursing homes that had significant problems in terms of giving the care and meeting Medicare standards," he said. "Why? Why wouldn't we fix that?"

Coburn's amendment would prohibit federally funded bonuses to nursing homes and any other government contractors that "fail to meet basic performance requirements." Coburn has likened the bonuses to those paid to executives at American International Group, or AIG, the insurer that has received $182 billion in federal bailout money.

In Iowa, the Register found that 16 of 23 homes hit with major fines in 2007 qualified for 2008 bonuses. Two homes that earned bonuses were on a federal list of the worst nursing homes in the nation, and a third faced the threat of having its license pulled because of substandard care.

In New Hampshire, the bonus program was dubbed the Medicaid Quality Incentive Payment to ensure legislative approval, although state officials there acknowledge the program includes no incentives or benchmarks for quality care. In other states, homes have been given bonuses to pay for legally mandated requirements, such as the installation of fire sprinklers or the payment of minimum wage.

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Senators Chuck Grassley (R-IA) and Herb Kohl (D-WI) reintroduced the Nursing Home Transparency and Improvement Act, a bill that would give consumers more information about individual nursing homes and their track record of care, give the government better tools for enforcing high quality standards, and encourage homes to improve on their own.

"Improving the quality of care in nursing homes is a constant challenge. More transparency, better enforcement and improved staff training are needed, and this legislation works to make changes in those areas and improve the quality of life of nursing home residents and to empower the family members and loved ones of those residents," Grassley said.

"Twenty-two years have passed since Congress last addressed the safety and quality of America's nursing homes in a comprehensive way," said Kohl. "As we prepare to debate reforms across our health care system, there has never been a better time to implement critical improvements to our nation's system of nursing homes. And as the GAO report demonstrates, many of these improvements are past due."

In addition to the bill introduced today, Grassley and Kohl released a U.S. Government Accountability Office (GAO) report entitled "Medicare and Medicaid Participating Facilities: CMS Needs to Reexamine Its Approach for Oversight of Health Care Facilities." This report suggests that the survey and certification system is significantly underfunded relative to the scope of its oversight responsibilities, which have greatly expanded in recent years. The report found that survey frequencies have greatly lengthened due to resource constraints, resulting in some facilities receiving inspections only once every ten years. The Nursing Home Transparency and Improvement Act seeks to bolster the federal government's survey and certification system.

Grassley is ranking member and former chairman of the Committee on Finance, with jurisdiction over the federal health care programs that cover nursing home care, and former chairman of the Special Committee on Aging. Kohl is chairman of the Special Committee on Aging, a standing committee that conducts oversight of issues related to the health, safety, and financial well-being of older Americans. The Grassley-Kohl bill is the product of their work together on nursing home quality, which has helped to generate some positive results in recent years, including the government's new five-star nursing home rating system and the release of the Special Focus Facility program participant list, consisting of the 135 worst nursing homes in the country.

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The Hour had an article about Connecticut Governor M. Jodi Rell announcement that her administration has given the Legislature's Public Health Committee testimony in support of her bill to provide greater state oversight over nursing home administration and management including ongoing financial monitoring and expanded quality of care reviews of nursing homes.

An Act Concerning Oversight of Nursing Homes would:

1.  identify areas of the state which either need or have a surplus of nursing home beds;

2. create an oversight committee to focus on financial solvency and quality of care issues;

3.  enhance the public's access to important nursing home data;

4.  provide for greater oversight by the Department of Social Services when there is an application for a change of ownership;

5.  require expanded financial reporting to DSS;

6.   require that nursing homes submit quarterly reports of accounts payable to DSS -- as unpaid bills are a key indicator of financial health; and provide state regulatory agencies with expanded subpoena authority.

"Placing a loved one in a nursing home is often a necessary, but difficult decision and family members deserve the peace of mind of knowing that the finances and the quality of care issues of these facilities are closely monitored," Rell said. "When a nursing home goes out of business due to financial issues, both patients and their families must suffer through the turmoil of a new placement.

"Nursing homes are an important part of the network of care and services for Connecticut residents and quality of care issues are paramount to individuals who have a family member in a nursing facility," the governor said. "We must do everything in our power to ensure a standard of care that instills confidence in the people who are entrusting loved ones to a nursing facility."
 

I wish every State especially South Carolina would pass similar legislation.

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McKnight's had another article on the Fairness in Nursing Home Arbitration Act.  This bill would prevent nursing homes from using pre-dispute arbitration agreements as a way to take away residents' rights to a jury trial. The bill is supported by both Republicans and Democrats and should be able to pass without much difficulty. 

Sens. Mel Martinez (R-FL) and Herb Kohl (D-WI) reintroduced their measure in an effort to "restore the original intent of arbitration laws [and] ensure that families will not have to choose between quality care and forgoing their rights within the judicial system."    The version of the bill introduced in the last session of Congress was approved by the Senate Judiciary Committee, but never came to a full floor vote. The bill does not prohibit the use of all arbitration agreements by nursing homes, only pre-dispute agreements.   Arbitration agreements could still be used after a dispute arises, though the bill would make them a voluntary matter.
 

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Maryland allows nursing homes to prohibit families from monitoring their loved ones via video or webcam.  NBC 25 had a story and article about  local lawmakers trying to make it illegal for nursing homes to prevent people from installing cameras in patient's rooms.  Cameras prevent neglect and abuse, and make sure that residents are getting the services they need.

The bill would require nursing homes to give people the choice of installing cameras that the patients or their families would pay for themselves. Cameras would not be allowed in bathrooms.

All rooms being monitored would be required to have a sign on the door.

For families, it's legislation that would bring them piece of mind.  It would also help management determine the competency of the staff and the effectiveness of treatments.  The nursing home industry does not want families to know what is going on at the facility when they are not there. 

Many times, when demented residents suffer abuse, the nursing home cannot substantiate the abuse and rarely try.   Imagine if there was a video--wouldn't that be a deterrent to any neglect or abuse?

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House subcommittee passes nursing home arbitration bill (07/17/08 McKnight's Long Term Care News)

The House Judiciary Subcommittee on Commercial Law and Administrative Law Tuesday approved the Fairness in Nursing Home Arbitration Act, which would outlaw signing an arbitration agreement as a prerequisite to admission in a nursing home.

Republicans on the subcommittee voted against the measure but came up short in a 5-4 vote. Some members tried to add amendments that would remove some of the sting for nursing homes. Rep. Chris Cannon (R-UT) tried to add language that would exclude physicians and providers in nursing homes from the bill, ensure the bill would not be retroactive, as well as other provisions. All these amendments were shouted down in voice votes.

The subcommittee's approval moves the bill one step closer to becoming law. Long-term care advocates oppose the legislation, arguing that arbitration agreements allow them to channel limited Medicare and Medicaid resources to providing quality care instead of funding lengthy court trials.  

Of course, no Medicaid or Medicare money actually goes to defending lawsuits since insurance companies pay for the defense of the claim.  What is really needed is a bill that mandates minimum amounts of insurance for each facility--something in the amount of 10% of gross revenues.

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Politico's Samuel Loewenberg wrote an article about how high priced lobbyists are attempting to get rid of necessary reforms for nursing home care to improve.

The profitable nursing home industry is mobilizing Washington’s most well-connected lobbyists to fight needed reforms,  Recently state and federal investigators and outside experts have agreed to certain reforms as a gaggle of industry lobbyists plotted strategy.

Among the lobbysts was The Carlyle Group, the politically connected and powerful private equity firm that recently bought Manor Care, one of the nation’s largest nursing home chain, for $6.3 billion.  

“In spite of existing oversight mechanisms, we continue to see examples of horrific treatment of nursing home residents,” testified Lewis Morris, general counsel for the Department of Health and Human Services’ Office of the Inspector General.

The lobbyists are carefully watching the Senate, where legislation could increase the oversight and enforcement of the industry.  It is well documented how deficient the oversight and enforcement of the industry is as evidenced by the recent GAO Report.  The senators are expected to try to attach the legislation to the upcoming Medicare payments package.

The industry lobbyists are fighting provisions to fully disclose ownership of nursing homes.  Why? No one knows. Clearly, families of residents should be able to understand who owns and operates the facility where they place loved ones. 

Additionally, penalties would be increased to as much as $100,000 if a patient is harmed or dies due to poor care. The penalties, which have not been changed in two decades, are now capped at $10,000.

To gird for the increased regulation, the industry is using a half-dozen of Washington’s most politically potent lobbying firms on both sides of the aisle.  “It is going to be pretty much battening down the hatches, because we’re not going to have a fair shake with a Democratic majority,” said a nursing home industry lobbyist who spoke on the condition of anonymity.

Since Carlyle took over Manor Care, some homes have reported significant patient care problems, said SEIU spokeswoman Julie Eisenhardt.   Meanwhile lobbyists for The Carlyle Group are stating that there is no evidence that private equity ownership negatively impacts care.   Both the Government Accountability Office and the Senate Finance Committee are still investigating the negative effect of private equity ownership on nursing home quality.

The issue is at the heart of one of the most controversial parts of the Grassley-Kohl legislation: a requirement that the sometimes-twisted ownership structures of nursing homes be made more transparent.   Congressional staff, experts, and advocates for the elderly say that private equity firms often establish layers in ownership structure as a way to dodge responsibility and legal liability.

And GAO reported how federal government regulators often miss signs of abuse and care deficiencies, ranging from failure to ensure “proper nutrition and hydration and [prevent] pressure sores” to serious deficiencies that could lead to “actual harm and immediate jeopardy.”

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Kaisernetwork.org has an article referencing a recent Wall St. Journal article showing how the nursing home industry is using mandatory arbitration to avoid compensating victims of abuse and neglect.  Below is an excerpt from the article:  

Nursing home residents and their families increasingly are "giving up their right to sue over disputes about care, including those involving death, as the homes write binding arbitration into their standard contracts," the Wall Street Journal reports.  According to the Journal, "Nursing homes have been among the biggest converts to the practice since a wave of big jury awards in the late 1990s."

The practice has "profound implications" on the nursing home industry, according to the Journal. An industry study released last year found that the average cost of settling cases has declined for nursing homes.

Consumer advocates and plaintiffs' lawyers have criticized the arbitration systems for nursing homes, saying that people too often do not understand whether the arbitration clauses are mandatory or that they are waiving their right to sue.  Sens. Mel Martinez (R-Fla.) and Herb Kohl (D-Wis.) introduced legislation that would prohibit nursing homes from requiring patients to sign an arbitration agreement as a term of service. Martinez said, "It is an unfair practice given the unequal bargaining position between someone desperate to find a place for their loved ones and a large corporate entity like a nursing home."

The American Arbitration Association, which is the largest arbitration provider in the nation, generally refuses to handle cases of nursing home arbitration and opposes arbitration requirements in nursing home claims. The American Health Lawyers Association has a similar stance, and other arbitration groups said they only accept the cases when the agreements are in compliance with law. Eric Tuchmann, general counsel for the American Arbitration Association, said that some patients "really are not in an appropriate state of mind to evaluate an agreement like an arbitration clause."

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Randy Ellis staff writer for NewsOk.com has a sad story about a neglected resident who did not get questions or compensation because the nursing home had no assets and no liability insurance.  Below are excerpts of the story:

The story refers to a family who received a telephone call that their mother had been injured at The Gardens nursing home in Sapulpa. Hospital X-rays revealed her mother had suffered spiral fractures to both legs.  Since that type of injury often is caused by abuse or neglect, the family sued the nursing home to get answers about what happened.  However, the nursing home had no medical liability insurance coverage. 

The number of nursing homes that have dropped medical liability insurance coverage has skyrocketed in recent years. There are now at least 56 uninsured homes with 6,621 beds, according to the Tulsa-based Oklahoma Center for Consumer & Patient Safety.
"Based on information provided to the Center, over 20 percent of the beds in Oklahoma are in nursing homes that refuse to carry insurance,” said Hugh M. Robert, executive director of the nonprofit group. "A state study last year speculated the number may be as high as 65 percent.”

Legislation introduced by Sen. Richard Lerblance, D-Hartshorne, would require nursing homes either to carry medical liability insurance or prove they have sufficient assets to pay substantial damages if they are found responsible for injuries caused by abuse or neglect.  It is difficult for consumers to discover that information on their own because nursing home owners often play a "corporate shell game."

One woman had maggots crawling out of her air cast because employees at her Oklahoma City nursing home had not cleaned beneath it and open pressure sores had developed. An Edmond nursing home patient was left on a bed pan so long her tail bone stuck to it, and a woman at a Frederick nursing home died after becoming so dehydrated that her tongue stuck to the roof of her mouth, attorneys said.

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