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

The Hartford Courant had an article about another greedy nursing home CEO. The former chief executive of a now defunct nursing home chain pleaded guilty to federal charges that he improperly used money intended for the homes to buy real estate.   Raymond Termini pleaded guilty to conspiracy to commit wire fraud and engaging in unlawful monetary transaction.

Termini stole a $6 million loan for private business transactions, and up to $2 million for sprinklers at the nursing homes instead to buy real estate and other purposes.  Termini was CEO of Middletown-based Haven Healthcare, one of the state's largest nursing home chains before it filed for bankruptcy protection in 2007, operating 27 facilities in five states, including 15 in Connecticut.  Termini agreed to forfeit $500,000.  So he steals millions but he "agreed" to pay a measly half a million. 

"Mr. Termini admitted he made some errors," Keefe said. "Otherwise he did a lot of good for a lot of people in that industry."

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Jackson Free Press had an interesting and scary article about presidential contender Haley Barbour's flip flopping on Medicare and history as a lobbyist and Tom Delay's indictment for illegal campaign donations.   When Haley Barbour was head of the Republican National Committee from 1993 to 1997, he loathed Medicare, and tried to gun it down in the GOP “Contract with America.”  By 2000, Barbour had returned to his lobbyist job at Barbour Griffith & Rogers, and had dramatically flip-flopped on Medicare, then lobbying for more federal tax dollars to be directed into the program. 

The Alliance for Quality Nursing Home Care Inc. was formed in 2000 as a corporate coalition of 14 of the country’s largest for-profit nursing home companies to help ease the way for the corporate consolidation of the nursing-home industry.   The coalition opposed Medicare cuts and government regulation of nursing-home standards and consolidation, and, perhaps most vitally, wanted low caps on the lawsuit damages the companies had to pay for abusing and neglecting nursing-home residents. The coalition paid top dollar to ensure the election of candidates who agreed with its agenda.   It directed impressive campaign donations to mostly Republican candidates around the country who would, in turn, honor the wishes of one of the country’s most tenacious industries.

That resolve is how a check for $100,000 written three years ago this week ended up illegally funding Republican candidates for the Texas statehouse.  That’s also how that canceled check ended as a primary exhibit in the case of State of Texas v. Thomas Dale Delay et al.

Unlike Mississippi, the state of Texas has long taken campaign-finance violations seriously, especially donations coming from outside the state to try to tell Texans what to do, and how to vote.  Violation is a felony, punishable by hefty fines and up to life in prison.

Rep. Tom Delay appears to have put considerable effort into circumventing that law. The former bug exterminator from Sugar Land became majority leader of the U.S. House of Representatives by his complicated web of political friends and family members including his own wife, Christine, and daughter, Danielle Ferro.

Delay has run a creative maze of schemes since the mid-1990s to get Republicans elected to office and “keep Republicans in lockstep,” using “threats and incentives,” as The Wall Street Journal characterized his style in June 2004.  He has been investigated five times and brought before the House Ethics Committee for his strong-arming of fellow members of Congress, trying to use donations to a children’s charity for a donor cruise, rewarding check-writers with face time with GOP stars, and other irregularities.

What prompted a grand jury of his home-state peers to indict him in September and again earlier this month on conspiracy and money laundering charges was his Texans for a Republican Majority Political Action Committee, known as TRMPAC.  Delay used the PAC to collect illegal corporate contributions (a third-degree felony) from January 2001 through the end of 2002 from corporations and then slip the money to 2002 candidates for the Texas statehouse (a first-degree felony). Much of the money was used to fund a last-minute campaign blitz—another violation of Texas law.

In return, the donors had a laundry list of demands—including tort reform and a blind eye to their consolidation plans.  The nursing-home industry, with its heavy reliance on government payouts for profits, is ripe for exploitation. And stories about the internal workings of nursing-homes aren’t exactly sexy enough for front page news.

“What we have seen is these corporations evolve to trying to shield themselves from liability or from paying taxes in such a way to finagle the law in ways no one imagined just a few years ago,” said Mississippi Rep. Jamie Franks, a lawyer and Democrat from Mooreville who is leading an effort to more closely monitor Mississippi’s nursing home industry.  “It’s amazing what high-dollar lawyers and high-dollar accountants can do.” He added: “And high-dollar lobbyists. You can throw that in there, too.”

What those high-dollar strategists did in 2000 was form the Alliance for Quality Nursing Home Care Inc., so that the industry giants—for-profit nursing homes that were members of the American Health Care Association—could pool their resources to overcome regulations regarding standard of care and limit lawsuit damages in as many states as possible and, ultimately, on the federal level in order to supersede state law.

The Alliance heavily lobbied the federal government to increase Medicare payments because for-profit nursing homes take more money from Medicare than Medicaid, which tends to sustain their competitors, the non-profit nursing homes. 

In October 2002, the Alliance invested in Delay’s scheme to pack the Texas statehouse (and thus Congress) writing a check for $100,000 to TRMPAC, dated Oct. 18 and signed by Alliance leader Stephen L. Guillard of Harborside Healthcare Corp. in Boston. On Oct. 21, Chris Winkle—then the chief executive of Mariner Health Care in Atlanta—met state Rep. Tom Craddick, R-Midland. They talked about the need to limit liability in lawsuits against nursing homes; then Winkle presented Craddick with the check, which TRMPAC deposited two days later. On Oct. 24, the Alliance contributed another $300,000 to the Texas Association of Business, an employers’ group that is now also under indictment in Texas for allegedly helping collect and launder illegal contributions.

After the 2002 election, in which 21 additional Republicans were elected to the Texas statehouse, Craddick became speaker of the Texas House of Representatives, and the Legislature quickly gave industry its desired “tort reform”—including $250,000 in non-economic damage caps and special provisions to shield nursing homes—that would become the model for industry efforts in other states, such as Mississippi in 2004 (which ended up compromising on $500,000 damage caps).

Ironically, it was one of the alleged conspirators who exposed the scam. The Texas Association of Business, or TAB, could hardly contain its glee over its success, reporting in a newsletter to members that it “blew the doors off the Nov. 5 election, using an unprecedented show of muscle that featured political contributions and a massive voter education drive.” And as the Wall Street Journal reported, its president, Bill Hammond, a former Texas legislator, bragged to the media that the group had used corporate money to finance a $2 million advertising campaign backing Delay’s slate of candidates.

Watchdog groups like Texans for Public Justice in Austin took notice and started following the money, ultimately finding that TRMPAC’s tax return showed that it had raised $1.5 million to help with the state races—and that $600,000 had come from corporate donations. Travis County District Attorney Ronnie Earle started investigating TRMPAC’s activities after Texans for Public Justice filed a complaint based on the revelations on the tax returns.

In September 2004, the indictments began when a Travis County grand jury handed down 32 indictment counts against TRMPAC and TAB and their leaders, as well as against eight companies that had supplied corporate funds, including State Farm Insurance, AT&T, the Union Pacific Railroad and the Alliance for Quality Nursing Home Care. On May 25, 2005, District Judge Joe Hart ruled in a civil case brought by 2002 Democratic candidates against TRMPAC that the use of corporate funds had violated the Texas Election Code.

On Sept. 28, 2005, the grand jury indicted Tom Delay and associates Jim Ellis and John Colyandro for conspiracy in the illegal scheme, and then on Oct. 3, a different grand jury indicted Delay on two new charges of money laundering.

Other friends of TRMPAC and its donors, such as now-Gov. Haley Barbour—who lobbied for the Alliance until he left his hefty stock in Barbour Griffith & Rogers in a reversible blind trust so he could take over the governor’s mansion in Mississippi—are distancing themselves from the beleaguered Alliance, if not from Delay.   It is not in dispute, that Barbour was lobbying in his client’s interest to block Medicare cuts at the same time that his client was presenting a $100,000 check to Craddick. (The $300,000 check from the Alliance to TAB followed a few days later.)

Andrew Wheat, the research director of Texans for Public Justice, balks at the idea that Barbour was not privy to the Alliance’s agenda—especially since his lobbying firm represented three of the corporate TRMPAC donors (the Alliance, Kindred Healthcare and Reliant Energy)—lobbying contracts worth $440,000 to Barbour Griffith & Rogers in 2002 alone. Barbour’s clients gave more money to TRMPAC than any of the other 10 lobbying firms who were represented. He was CEO of Barbour Griffth & Rogers and representing the nursing homes when the Alliance was created in 2000.

The Alliance’s agenda is one that is wreaking havoc in states like Texas, Arkansas and Mississippi, where its members control much of the nursing-home business and are now getting their way, thanks to a nationwide corporate realignment, consumer advocates say. The changes in the historically tightly regulated nursing-home industry are profound.

Franks points to the December 2004 sale of Mariner Health Care for $1.05 billion to National Senior Care, owned by New York real estate investor Harry Grunstein. Harry is Leonard Grunstein's brother.  Leonard Grunstein is partners with Murray Forman.  Harry sold Mariner’s assets to cover the costs of the acquisition, reducing the worth and assets of Mariner to $12 million and, critics say, operating the nursing homes more like rental units. “It basically became a real-estate transaction rather than a group caring for vulnerable adults,” Franks said. He added that, now, the nursing homes seem to be escaping accountability with these transfers. “There is no background check to find out whether they are financially solvent, or good corporate citizens. They simply transfer the license,” he said.

Because it is the licensee that is regulated, the process of stripping that licensee of its assets is essentially a tricky end run, allowing the real-estate owners, such as Grunstein, to escape liability. This, combined with the increased “tort reform” damage caps sought by the Alliance, insulates the corporate owners from the regulatory safeguards that are meant to protect patients and the elderly.   In turn, those licensees are now defaulting on money owed to vendors in states like Mississippi. And because assets are being ripped away from the nursing homes themselves, they end up with little to be sought in lawsuits brought by the vendors looking to be repaid.

One unpaid Mississippi vendor is the law firm Brunini, Grantham, Grower & Hewes in Jackson, which is suing Mariner for $951,915.17 in legal fees for defending the nursing homes. In the complaint, filed in Hinds County Chancery Court, Brunini describes Mariner’s “leveraged buyout” scheme, which it alleges is “fraudulent.”   Franks points to hearings in Arkansas, called by a Republican and a Democrat, that just concluded that the state has ended up with “no” regulatory power over these companies, due to their maneuvering. “This is not partisan,” Franks said. “It’s a consumer issue. It’s about protecting vulnerable citizens and our tax dollars.”

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The L.A. Times had an article about firms that supply temporary nurses to the nation's hospitals and nursing homes.  The article reveals that these firms take perilous shortcuts in their screening and supervision, sometimes putting seriously ill patients in the hands of incompetent or impaired caregivers.  Emboldened by an alleged nursing shortage and scant regulation, the firms vie for their share of a free-wheeling, $4-billion industry. Some have become havens for nurses who hopscotch from place to place to avoid the consequences of their misconduct.

An investigation by the nonprofit newsroom ProPublica and the Los Angeles Times found dozens of instances in which staffing agencies skimped on background checks or ignored warnings from hospitals about sub-par nurses on their payrolls. Some hired nurses sight unseen, without even conducting an interview.  As a result, fill-in nurses with documented histories of poor care have fallen asleep on the job, failed to perform critical tests or stolen drugs intended to ease patients' pain or anxiety.

Among reporters' findings, based on disciplinary records, personnel files, court documents and interviews:

* Firms hired nurses who had criminal records or left states where their licenses had been restricted or revoked. At least three firms employed a nurse in California whose license had been suspended in Minnesota for stealing drugs at a string of temp jobs. One used him after he'd been convicted of doing the same thing at a Santa Rosa nursing home.

* Temp agencies shuffled errant nurses from one hospital to another, even as complaints mounted. A Culver City agency continued sending one nurse to hospitals despite more than a dozen warnings that she was ignoring her patients and sleeping on the job. Before she was hired, the nurse had been convicted of 12 crimes, including prostitution, carrying a concealed weapon and possessing cocaine.

* Nurses who got into trouble at one agency had no problem landing a job at another. An Oklahoma nurse cycled through at least four Southern California agencies in a year, accused of pilfering drugs while at each. Before her final stop, she was arrested in her home state for calling in prescriptions while posing as a doctor's office employee.

Oversight of nurses in general has been weak. A Times/ProPublica investigation in July found years-long delays in disciplining nurses accused of serious misconduct. California's registered nursing board is among a minority that does not require hospitals, agencies or anyone else to report even serious lapses by nurses, including temps. When staff nurses err, hospitals typically retrain or monitor them afterward. Temp nurses often are just exchanged for replacements, never receiving further guidance.

Many agencies leave it to applicants to reveal previous problems. Using multi-page checklists, they are asked to rate themselves on how well they manage critical care patients, use complex equipment and administer drugs. Some nurses admit lying on applications or withholding information from their employers.

Although the healthcare system as a whole is increasingly regulated, the nurse staffing industry remains a Wild West. No one knows how many agencies exist nationwide; estimates range from 3,000 to 6,000. Dozens of Internet sites tout the easy profits and hawk how-to guides for as low as $69.95.

Last year Los Angeles County health staffers went through the files of 29 agencies seeking to provide nurses to its public hospitals. Most of the firms lacked key documents, including evidence of tuberculosis screenings or proof that nurses had current licenses. One agency had 90 missing or invalid records, another 63. The lapses were "surprising," said Vivian C. Branchick, director of nursing affairs for the county Department of Health Services. "They know -- and they've known it all along" -- what the standard is. All of these firms were allowed to correct their shortcomings and won county business.

In late 2006, the county audited Reliable Health Care Services in Culver City, which had received $8.9 million for temp services during the previous fiscal year. The audit found that Reliable had "forged" results of tuberculosis skin tests, physical exams and CPR training cards, which "jeopardized the safety of county patients." Reliable also made "false and misleading statements," the audit said, citing a general "lack of trustworthiness and integrity."

According to Riverside County Regional Medical Center more than 60% of the 339 temp nurses rejected since 2003 failed to demonstrate basic nursing skills on the job. Arrowhead Regional Medical Center, San Bernardino County's public hospital, reported that it had rejected 61 temp nurses since 2005 -- more than half for performance problems.

In another case, St. Jude Medical Center in Fullerton informed MedStaff Healthcare Solutions in March 2007 that it suspected nurse Donald Paradise of stealing drugs and asked that he never return, a hospital spokesman said. Six months later, Paradise was accused of stealing drugs at a sister hospital, where he also had been sent by MedStaff.

In interviews, several temp nurses who had been in trouble said their employers focused more on keeping slots filled than on who filled them.

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My next three entries will discuss the exploits and complaints against OmniCare, Mariner, SavaSeniorCare, and Murray Foreman, Rubin Schron, and Leonard Grunstein who own and operate hundreds of nursing homes through a complex maze of corporate shenanigans, and were finally caught gaming the system to make millions and deprive our loved ones of the necessary care they deserve.  Our taxes are going into the pocket of these greedy corrupt men.

There have been numerous articles on these cases and I will try to organize, summarize, and paraphrase most of them in the next three days.  It is interesting that none of the article discusses Murray Foreman and Leonard Grunstein's ownership of Fundamental Long Term Care Company that owns and operates hundreds of other nursing homes using the THI name.

The Wall Street Journal wrote geriatric pharmacy company Omnicare Inc. will pay $98 million to settle charges that it engaged in several kickback schemes with drug makers and nursing homes.  The Justice Department alleged that Omnicare regularly paid kickbacks to nursing homes in order to induce the homes to refer their patients to Omnicare for pharmacy services.  Separately, the department said it was intervening in a lawsuit alleging that two nursing-home chains, Mariner Health Care Inc. and SavaSeniorCare Administrative Services, accepted kickbacks from Omnicare in return for pharmacy-service contracts.

Reuters had an article that added additional facts.   DOJ filed a complaint against two large nursing home chains, Mariner Health Care Inc. and SavaSeniorCare Administrative Services LLC, both of Atlanta, and their principals, Leonard Grunstein, Murray Forman, and Rubin Schron, for accepting a kickback from Omnicare in return for pharmacy services contracts.  The company allegedly solicited and received kickbacks in exchange for agreeing to recommend that physicians prescribe Risperdal, a  dangerous antipsychotic drug, to nursing home patients.

The government further alleged that Omnicare regularly paid kickbacks to nursing homes by providing consultant pharmacist services at rates below the company's cost and below the fair market value of such services in order to induce the homes to refer their patients to Omnicare
for pharmacy services.

The United States alleges that Omnicare, Mariner Health Care, SavaSenior Care, Grunstein, Forman, and Schron conspired to arrange for Omnicare to pay the nursing home chains $50 million in exchange for the right to continue providing pharmacy services to the nursing homes, which together constituted one of Omnicare's largest customers. Defendants attempted to disguise the $50 million kickback as a payment to acquire a small Mariner Health Care business unit that had only two employees and was worth far less than $50 million.

After they became aware of the government's investigation, Grunstein, Forman, and Schron allegedly created false backdated documents in a further attempt to hide the kickback. These
allegations are detailed in a separate complaint that was unsealed recently.  Read the Complaint here.

More to come tomorrow.

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We are pleased to have Adrienne Carlson, who regularly writes on the topic of nurse practitioner schools, write the following guest article.

It’s a situation that we hope never comes to our loved ones, but if we are practical, we know that it could happen to even the healthiest of us. When elderly family members become sick and infirm and need constant round-the-clock care, we may not be able to provide what they need because we are too busy with our lives, work, social commitments and families. So we do the next best thing, choose a nursing home that caters to their every need and keeps them in comfort for the rest of their lives. When it comes to choosing a nursing home for your loved ones, here are a few salient points to keep in mind:

• Location matters: You’re going to want to visit frequently and check up on your loved one often. So choose a home that is near you, preferably not more than an hour’s drive away. The further your loved one is, the more you’re going to come up with excuses not visit and this could end up making your relationship deteriorate.

• Check it out: Never choose a home without checking it out at least twice. If possible, take your loved one with you so that they too have a say in where they’re going to live. They may also want to move in with a friend or loved one who is in a nursing home, so take their wishes into consideration too. Loneliness can weigh heavily on their mind, so it’s important that they have a friend in the facility.

• Talk to residents and staff members: Your instinct will tell you how good or bad a nursing home is. When you talk to people at the home, be it staff or residents, take in all their comments and answers without forming an opinion right away. Write down important aspects, then go home and discuss options with your loved one.

• Think of the cost factor: If you expect Medicare or similar programs to pay for the nursing home, you will be restricted to choosing one that is approved by the state under the guidelines of these programs. Visit those close to your location and choose one that is clean and has good service. Also ensure that adequate medical facilities are available to provide care during emergencies and for common conditions that occur with old age.

• Visit frequently: The only way to ensure that you’ve made the right choice of nursing home is to visit often and see that your loved one is well cared for and satisfied. If you’re not able to visit frequently, at least call and check if everything is ok.

Nursing homes are meant to be a home away from home for the elderly. So ensure that your loved ones are well taken care of when you put them in such facilities.

Adrienne welcomes your comments and questions at her email address: adrienne.carlson83@yahoo.com
 

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Here is a link to The Frederick News-Post which had a terrific op-ed by Katherine Heerbrandt about accountability and the nursing home industry.  The editorial is below:

Nursing homes are places where residents go about the business of wrapping up their lives or recuperating from illness, so it's not surprising that many of us have an aversion to them. Perhaps we see a future we don't want to contemplate.  But as baby boomers age, living out our golden years in a long-term care facility is a real possibility. The size of the disabled older population who will need assisted or nursing home care will grow by more than 50 percent between 2000 and 2040, according to the Urban Institute.

Entrepreneurs are looking at long-term care facilities as good investments. But as private equity investors flood into the nursing home business, "it's become harder and harder for families, regulators or prosecutors to identify the right individual or business entity to hold accountable for bad care," Janet Wells, public policy director of National Citizens' for Nursing Care Reform, said in an interview.

"The Office of Inspector General says it has found as many as 17 limited liability companies in the ownership and operations of a single facility," Wells said. "Most of these companies are making profits from the business, but they can't be held accountable by anyone for what happens to an individual resident."

This trend, she said, triggered a transparency bill this year and is part of the controversial health care reform legislation currently before Congress. A similar bill failed last year, and compromises were made. The bill currently before the House requires Nursing Home Compare (Medicare.gov/NHCompare/home/asp) to report the number of adjudicated criminal violations by facilities or crimes committed by their employees. States will also have to post survey reports online so consumers can read the inspectors' findings.

It's an uphill battle for advocacy groups. Nursing home lobbyists have much deeper pockets. "The nursing home industry is extremely powerful," Wells said. "And although it claims it can't make a profit from operating nursing homes, spends hundreds of thousands of dollars on campaign contributions and lobbying."

Lobbying, it seems, is a recession-proof profession. In the past decade, nursing home lobbyists' spending has risen from $25 million to $100 million, according to opensecrets.org, maintained by the Center for Responsible Politics.

Tyonja Bathgate became an unwilling advocate for nursing home residents' rights when her husband, Colin, moved to a local long-term care facility two years ago, and she worked with Delegate Sue Hecht on a bill to allow cameras in nursing homes. That bill failed this year.

Based on her experiences, Bathgate supports any legislation that will make nursing home operators more accountable and their operations more transparent.

Even if you or a loved one is not in a nursing home, she said, you are still affected by this legislation.

"Where do you think Medicare/Medicaid comes from? Those are tax dollars and nursing homes shouldn't be able to hide behind LLCs, or to spend millions on lobbyists. That's ridiculous," she said.

She's right. Why shouldn't the facilities entrusted with caring for our nation's chronically ill and elderly be held accountable for how they run their businesses?

For sample letters to your representatives and more information on the details of the nursing home transparency legislation, visit nccnhr.org.
 

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Link to Modernmedicine.com of tables summarizing data from RN Magazine's Salary Survey of nurses' salaries. See results.  Nursing is one of the most difficult but rewarding careers to have, and the future looks good.

The past two years have seen stagnant wages, eroding benefits, and feared or actual layoffs as recession swamped the economy.  However, the vast majority of nurses enjoy rising fortunes. Their average wages have echoed the double-digit percentage increases of the mid-2000s—with even sharper raises for select nursing specialties and settings.

The average annual base pay of salaried nurses (who typically hold management or administrative positions) grew 10%, or $6,746, to $75,180. Nurses paid by the hour fared even better; their average base earnings rose 13% ($7,460), to $64,018. Combined, hourly and salaried nurses received $7,270 more on average, for a 12% raise to an overall base pay of $65,653.

The article concludes that nursing salaries will remain lucrative:

The American Recovery and Reinvestment Act, passed in February 2009, allocated $500 million toward the National Health Service Corps and Nursing Workforce Development Programs, to boost funding for nurse education and create nursing jobs in underserved areas.

With a Democratic president and Congress, and a recent alliance among three nursing associations with the AFL-CIO to address healthcare, union, and nursing-workplace issues, nurses' union membership may rise, which past RN surveys have linked to higher salaries.

Demand for nurses will only increase. The Bureau of Labor Statistics anticipated in 2006 that 587,000 new nursing positions would open over the next 10 years.   As older nurses reduce their hours or retire, gaps in existing positions could raise that demand to 1.1 million.   And nursing schools are having trouble hiring sufficient faculty to accept all qualified applicants.   If the faculty chokepoint isn't resolved, new nurses could bid their starting wages higher.
 

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There was a great editorial letter recently by Diana Rhodes in the Casper Star-Tribune Online discussing the need for updated regulations and reforms in the nursing home industry.  Below is a copy of the letter. 

Congress hasn't passed legislation to improve nursing home care since 1987. It has a chance to do so now in health care reform.

There have been a lot of changes in the nursing home industry in two decades -- not all of them good. Several large chains have been bought out by global private equity investors; in fact, a majority of nursing homes are owned by for-profit corporations. The way these companies structure themselves, even our state health regulators can't tell who owns them sometimes, especially when the owners are out-of-state. This can create a dangerous situation for the residents, because no one is truly accountable for what happens to them.

The Nursing Home Transparency and Improvement Act is part of the draft health care reform bills that the House and Senate are considering. It would make nursing homes disclose their owners and operators. It would also give families a lot more information about the nursing homes they put their loved ones in, including whether they have adequate staff. It would help the federal government get better oversight over these multi-state chains.

I want to urge Sen. John Barrasso, Sen. Mike Enzi, and Rep. Cynthia Lummis to support nursing home transparency and improvement in health care reform. The elderly and people with disabilities in our state deserve nursing homes that are transparent and accountable, and families need information to make good choices when they choose a nursing home for someone.

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 Below are excerpts from an article regarding arbitration clauses in nursing home contracts provided by Dollar, Burns & Becker, L.C.  Their firm website is here. 

Arbitration clauses in nursing home contracts have come under closer scrutiny in recent years. At the federal level, there has been a push in Congress to pass the Fairness in Nursing Home Arbitration Act, which would make any pre-dispute arbitration agreement between nursing homes and residents invalid and unenforceable.

At the state level, several state courts also have faced the issue of the enforceability of arbitration clauses in long-term care facility contracts. In Illinois, the appellate court upheld a ruling that the Illinois Nursing Home Care Act prevented nursing home residents from waiving their rights to a jury trial. The nursing home argued that the appellate court's ruling contravenes the Federal Arbitration Act (FAA).

The Missouri Supreme Court ruled in Lawrence v Beverly Manor (273 S.W.3d 525) that arbitration agreements in nursing home contracts do not prevent the heirs or successors to the nursing home resident from bringing a wrongful death action in court against the nursing home.

In Lawrence, the daughter of a resident signed the nursing home contract with the arbitration agreement on behalf of her mother. Her mother died in the nursing home shortly after moving in. When the wrongful death action was brought against Beverly Manor, it sought to enforce the arbitration agreement against the daughter and son of the resident. The Missouri court refused to do so, holding that the arbitration agreement was not binding against the family in a wrongful death case.

 The Missouri Supreme Court ruled that a wrongful death action is a separate cause of action. The court reasoned that the arbitration agreement did not bind the daughter and son in Lawrence because the deceased mother could not have brought a wrongful death lawsuit against the nursing home had she lived.

Thus, under Missouri state law, arbitration agreements signed by nursing home residents -- or by someone acting on their behalf, such as a son or daughter -- are not enforceable against anyone seeking to bring a wrongful death action in state court.

The Lawrence decision did not invalidate arbitration agreements in nursing home contracts.  The Lawrence decision, however, may be used in future cases to attempt to invalidate arbitration agreements in nursing home contracts altogether. Special Judge Glenn A. Norton wrote that he believed any agreements between nursing homes and residents requiring arbitration for personal injury were unconscionable and should be unenforceable.

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