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

The Winston-Salem Journal had an article about Clemmons Nursing and Rehab Center possibly losing the ability to be reimbursed by Medicaid and Medicare for failing to follow OBRA regulations and other standards of care.  Clemmons is facing federal and state claims that it isn't properly caring for residents after investigators found that employees injured a patient by carelessly picking her up out of a wheelchair and throwing her onto her bed.  The state's investigation cited concerns about residents' physical and mental health and said the nursing home failed to comply with its policies and procedures, such as filing timely reports on incidents.  The center also was cited by the state for not properly observing residents' medication regimens and not properly cleaning some female residents' genitals.

Medicare may no longer make payments to the center for new inpatient services, and would only make payments for up to 30 days for patients admitted before June 19.  However, federal and state agencies have in the past extended the compliance deadline, depending primarily on whether the facility shows initiative in addressing deficiencies.

Clemmons is operated by Forsyth Health Investors LLC. The center has 120 beds and 71 residents.  The center also received a notice, dated June 1, that its state certification was in immediate jeopardy. 

The state agency recommended to Medicare that the center be fined a civil penalty of $10,000 for each incident.  A survey by the federal Medicare and Medicaid agency, released in December, gave the center two out of five stars, with five being the highest. The rankings focus on three categories -- health inspections, staffing and quality measures.

See full report here.

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This guest post is contributed by Jennifer Johnson, who writes on the topics of Nurse Practitioner Schools. She welcomes your comments at her email Id: j.johnson19june@gmail.com.

It's always good for both the nursing home patient and their family members to understand what the patient's rights are while he or she is under the care of a nursing home. Knowing how a patient should be treated—medically, physically and emotionally—starts by having a clear understanding of the foundational rights provided to patients through the Federal Nursing Home Reform Act, part of the Omnibus Budget Reconciliation Act of 1987 (aka OBRA '87).

The Act, which was rolled up into OBRA '87 as part of one big package, sets up minimum standards of care and establishes rights for people living in certified nursing facilities in the U.S. The Act spearheaded a continual move away from nursing homes having almost an old-school prison or insane asylum mentality and includes measures that help protect a resident's quality of life as well as quality of care.

Some of the key provisions in the Act include:

• A resident will maintain and, if possible, improve their ability to walk, bathe and perform other daily living activities unless medical reasons prevent them. Alongside this is the resident's right to be free from unneeded physical (or chemical) restraints;
• Residents' medical conditions will be assessed and an individualized care plan must be developed for them;
• All paraprofessional staff must receive the appropriate amount of hours of training and testing;
• A resident must be allowed to stay in the nursing home even if the facility does not receive payment, or if the resident's medical condition changes drastically;
• The right of a resident to maintain personal funds with the nursing home (or designate a trusted person to do it for them), to return after an overnight stay with family or friends, to choose their own physician, and to access their own medical records;
• The nursing facility is prohibited from breathing down the neck of family members to pay for Medicare and Medicaid services.
• Ramifications for facilities that fail to meet minimum standards.

Medicare also informs patients of their rights in a nursing home to be treated with dignity and respect, to be informed in writing of all services and fees, to manage your own money, to have a certain amount of privacy, to maintain certain unharmful personal belongings, and to refuse medications and treatments.

If a patient or his or her family have reason to believe these rights have been violated, the family may wish to take legal action, for the sake of the resident and all other residents in the facility.

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NY Times had a great article on the too common practice of overmedicating residents in nursing homes.  Nursing homes often chemically restrain residents because it is easier:  No complaints, no call bells, no requests.   Management can then staff less people on certain shifts especially at night.  Paula Spann wrote a great article.

Within three months of admission, a team of University of South Florida researchers determined, 71 percent of Medicaid residents in Florida nursing homes were receiving a psychoactive medication — an antidepressant or anti-psychotic, or dementia drugs — even though most were not taking such drugs in the months before they moved in and didn’t have psychiatric diagnoses. 15 percent of residents were taking four or more such medications.  Only 12 percent were getting nondrug treatments like behavioral therapy.

The article mentions Victor Molinari, a professor of aging at the University of South Florida and lead author of the study.  He wasn’t startled by those statistics. “They confirmed what I suspected,” he told me in an interview. “And people who work in nursing homes wouldn’t be surprised.  It seems the use of psychoactive medication is trumping the use of nondrug treatments,” Dr. Molinari said.   And given the possible interactions with the many other drugs most residents take, an average 10 or more prescriptions, “it could well be that we’re causing problems like falls, confusion and delirium, and hospitalizations,” he cautioned.

Nursing homes’ reliance on psychoactive drugs has troubled professionals in geriatrics for years.   In many states, residents being admitted directly from hospitals are exempt from screening.  As a result, federal data show, fewer than half of residents with major mental illnesses receive the mandated assessment.  Only half of nursing homes provide weekly patient consultations with psychiatrists, psychologists or other mental health experts; even fewer provide consultations with those who specialize in working with seniors. In addition, staffs are stretched thin and inadequately trained in mental health care. With a pill a quicker and simpler intervention than the alternatives, intentional overuse is the result.   If the aide had fewer patients to care for or if management increased staffing numbers, and more time to soothe one who was agitated, if she’d had better training in responding to behavioral problems, she might be able to handle behavioral issues.  

The Justice Department brought criminal charges against Eli Lilly, accusing the big pharmaceutical firm of illegally marketing its anti-psychotic Zyprexa to doctors who work in nursing homes and assisted living facilities, and encouraging them to prescribe it for sleep disorders and dementia. Its approved use is to treat schizophrenia and bipolar disorder. Lilly agreed to pay $1.4 billion in a related civil settlement.

“For years, I’ve had calls from family members saying, ‘Mom was completely lucid when she went into the nursing home, and a week later she no longer recognized us,’” said Janet Wells, public policy director of NCCNHR, formerly the National Citizens’ Coalition for Nursing Home Reform. “Families should question why drugs are prescribed, do some research. A lot of drugs are being used as restraints.”

Paula Span is the author of the recently published “When the Time Comes: Families With Aging Parents Share Their Struggles and Solutions.”

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Many times, a family member of a nursing home resident will call us with concerns about bruises, unexplained injuries, falls, and pressure ulcers.  We suggest that they look at the medical records.  Numerous nursing homes will refuse to allow family members access to the medical records despite 42 CFR 483.10(j)(1)(vii) - which clearly states:

(1) The resident has the right and the facility must provide immediate access to any resident by the following:

(vii) Subject to the resident's right to deny or withdraw consent at any time, immediate family or other relatives of the resident.

Nursing homes are either ignorant of their responsibilities or intentionally concealing material and medical information to residents and their family members.  Why would a nursing home refuse to allow a family member of the resident access to the chart?  Many times, after a family requests the chart, nursing homes send the chart to outside legal and clinical consultants to "clean up" the information in the chart.  The above federal regulation needs to be enforced.  The best way is to complain to your local ombudsman, state health agency, and your local politician.

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In a landmark opinion that recognizes a new cause of action for nursing home residents, the 3rd U.S. Circuit Court of Appeals has ruled that the Federal Nursing Home Reform Amendments give residents of county-run nursing homes the right to bring claims to challenge the quality of their treatment.   This is a huge victory for consumers of nursing homes.  Hopefully, other Courts will follow the sound reasoning and adopt the holding.

"The language used throughout the FNHRA is explicitly and unambiguously rights-creating," U.S. Circuit Judge Richard L. Nygaard wrote in his 23-page opinion in Grammar v. John J. Kane Regional Centers.   "These provisions make clear that nursing homes must provide a basic level of service and care for residents and Medicaid patients," Nygaard wrote.

"The FNHRA are replete with rights-creating language. The amendments confer upon residents of such facilities the right to choose their personal attending physicians, to be fully informed about and to participate in care and treatment, to be free from physical or mental abuse, to voice grievances and to enjoy privacy and confidentiality," Nygaard wrote.

Under the law, Nygaard said, nursing homes "are required to care for residents in a manner promoting quality of life, provide services and activities to maintain the highest practicable physical, mental and psychosocial well-being of residents, and conduct comprehensive assessments of their functional abilities."

Nygaard also found that the statute "specifically guarantees nursing home residents the right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for the purposes of discipline or convenience and not required to treat their medical symptoms."

Congress also chose key phrases that Nygaard found to be clear indications that private lawsuits should be allowed. "The repeated use of the phrases 'must provide,' 'must maintain' and 'must conduct' are not unduly vague or amorphous such that the judiciary cannot enforce the statutory provisions," Nygaard wrote.

As further evidence that Congress intended to create a private right of action, Nygaard noted that the FNHRA "use the word 'residents' throughout," and their provisions "are constructed in such a way as to stress that these 'residents' have explicitly identified rights, such as 'the right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for the purposes of discipline or convenience and not required to treat the resident's medical symptoms.'"

In the case of the FNHRA, Nygaard said: "[O]ur independent examination and assessment of the Medicaid Act disclosed no evidence of congressional intent to preclude enforcement of the rights created by the various provisions of this statute. This is so because no provision contains express terms to that effect and no comprehensive remedial scheme is established by the provisions at issue."

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OBRA is the federal regulations that establish the standard of care in nursing home facilities that receive Medicare or Medicaid. In those regulations, the below section clearly establishes that the governing body is ultimately responsible for how the nursing home is operated and managed.

42 CFR 483.75 provides:

(d) Governing body. (1) The facility must have a governing body, or
designated persons functioning as a governing body, that is legally
responsible for establishing and implementing policies regarding the
management and operation of the facility; and
(2) The governing body appoints the administrator who is--
(i) Licensed by the State where licensing is required; and
(ii) Responsible for management of the facility.

Canavan v. Nat'l Healthcare, 889 So.2d 825, 2004 Fla. App. holds that the governing body may be liable under this regulation.

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