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

Mother Jones had an interesting article about Ken Connor, the conservative Christian Republican who testified in support of a bill that would ban the use of mandatory binding arbitration clauses in nursing home contracts. Most nursing homes today, as a condition of admission, force vulnerable elderly people to waive their right to a jury trial. Instead, they must take any complaints about neglect or abuse to a private arbitrator, chosen and paid by the nursing home, in secret proceedings where awards are much lower. The arbitration agreements are often buried in a stack of complicated paperwork, where in some cases, they have been signed by blind people and those suffering from Alzheimer's.

The nursing home arbitration bill should pass overwhelmingly. That's why Republicans really, really don't want to vote for the nursing home bill, and one reason Connor's advocacy is making them squirm.   Connor sues nursing homes for a living. Just last month, Connor won a $2 million verdict against Sunrise Senior Living in California for failing to prevent and care for an elderly woman's fatal bedsores. . As such, Republicans would love to dismiss Connor as just another greedy trial lawyer. But Connor's religious-right bona fides simply make that impossible.

For three years, Connor served as the president of the Family Research Council, a leading social conservative outfit, and became a rock star among the GOP’s evangelical wing when he went to work in 2004 for then-Governor Jeb Bush to defend a Florida law that would have prevented doctors from removing Terri Schiavo's feeding tube. For Republican legislators, Connor has moral authority. He also gives money to many of them, so Republicans have to tolerate him, even as he forces them into a corner where they have to chose between devotion to industry and devotion to God and life.

While the GOP views trial lawyers as its mortal enemies, Connor doesn't see any contradiction between his profession and role as family values crusader. Instead, he sees his lawsuits against nursing homes as an extension of the work he did in the Schiavo case. "Removing the feeding tube, letting Teri Schiavo starve to death," he said in an interview, "I see this all the time with the elderly." Connor believes that the frail elderly are second only to the unborn in their suffering due to what he sees as a prevailing "quality of life" mindset, as opposed to one focused on the sanctity of life. He says he's witnessed bioethicists in Florida argue that if an elderly person suffers from dementia, there would be nothing wrong with hastening his or her demise. "If you call yourself a Christian, you have an obligation to fight for social justice," he says, noting that, "It's much easier to make the case for the elderly than for the unborn." 

He testified about some of his experiences with nursing homes: "All too often, the story is the same: avoidable pressure ulcers (bed sores) penetrating to the bone; wounds with dirty bandages that are infected and foul smelling; patients languishing in urine and feces for hours on end; hollow-eyed residents suffering from avoidable malnutrition, unable to ask for help because their tongues are parched and swollen from preventable dehydration; dirty catheters clogged with crystalline sediment and yellow-green urine in the bag."

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Inevitably in most of our nrsing home cases, numerous documents that are intended to show the care, treatment, and services provided to the resident are missing, lost, or never done by the staff.  This occurs because the care was not provided or understaffing caused the staff not to have time to document or poorly trained and supervised staff.  Despite the fact that all nurses were taught and accept the axiom that "If it wasn't documented, it wasn't done", the insurance companies, nursing home industry, and their defense counsel always say the missing information is not relevant and does not show that the care wasn't given but rather wasn't documented.  Hopefully, the new Medicare reimbursement policies will preclude this frivolous argument.

McKnight's has an article discussing the new Medicare reimbursement policies and the necessity of documentation to prove care provided.  Nursing homes will have a greater role in ensuring accurate documentation of care.    Compliance officers' experience in billing and coding could be easily transferred to the area of quality-of-care forms.  Physicians and care workers will need to learn the appropriate language from compliance officers to best fill out the claims forms.

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Below is an excerpt of an article I recently saw from The Choate News about how California nursing homes used an increase in reimbursements from the State for profit instead of providing adequate care.

Nursing Home Pocket Money Meant For Care
By Jordan Rau

SACRAMENTO, Calif. -- California’s nursing homes pocketed much of the $590 million that state lawmakers provided them to better tend to low-income people, while patient care declined by several key measures, according to a study to be released Tuesday.

A law boosting reimbursements from MediCal, the state’s health-care program for poor people, passed in 2004. By 2006, the first full year the higher rates were in place, average nursing-home revenues from MediCal had increased from $124 a day to $152 per day, according to the study by a team of researchers at the University of California, San Francisco -- but few of the promised improvements for patients or staff had come to pass.

Nursing attention for patients grew, on average, by 3 percent. But the study also found that 144 homes, or 16 percent, did not meet the state’s minimum staffing standard.

Average wages for nursing assistants increased from $10.61 an hour to $11.32, not quite enough to keep pace with inflation, the study said.   Turnover among nurses grew slightly worse, with nearly 7 in 10 leaving their jobs that year.

The amount nursing homes spent on direct patient care actually decreased by 3.6 percent, according to the study. Substantiated complaints of patient mistreatment increased by 38 percent. State and federal regulators cited homes for 6 percent more violations.

“They got so much money, they should have been able to do something,” said the study’s lead author, Charlene Harrington, a UCSF professor and nationally recognized authority on nursing homes.   “The fact that they let the nursing-assistant wages actually decline with inflation, I think there’s no excuse for that,” Harrington said. “They’re the bulk of the workers and they’re the lowest paid.”

The higher reimbursement rates were pushed through the Legislature in the final two weeks of its 2004 session by a powerful alliance between the nursing-home industry and Service Employees International Union, which represents many health-care workers.

At the time, several nursing-home advocates objected that the measure lacked sufficient safeguards to ensure that the money went to patient care.

Along with more money, the new law changed the way facilities were reimbursed from a flat fee for each patient to one based on how much the homes spent on workers, patients and the physical plant. Supporters pledged that the change would reward homes that hired more nurses and paid them better.

The average nursing home netted $248,047 in 2006, a 233 percent increase from 2004, the study said.   The study found some areas where nursing-home spending did increase substantially.

For example, administrators’ wages rose by 13 percent, and the pay for licensed nurses -- who have more training than assistants -- grew by 9 percent.

Nonprofit nursing homes raised their wages more than for-profit homes. Still, said Michael Connors of California Advocates for Nursing Home Reform, a patient watchdog group, “to a great degree, no one knows where the money went and how it was used. What’s clear is it hasn’t been used for beneficial effects on residents, which is appalling.”

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Here is an article showing how profitable the nursing home industry actually is while the insurance companies are requesting immunity and protection from their neglect and abuse.  

Robust Financial Standing Of California Nursing Homes Observed Amid Slump In Quality Care
Vittorio Hernandez - AHN News Writer

A study released Tuesday reported growing profitability of the nursing home industry, but declining health care quality.

Researchers from the University of California San Francisco found out that two years after the state passed legislation increasing reimbursements from Medi-Cal, average nursing home income from the state's healthcare program went up to $152 from $124 daily.

The same study discovered 16 percent of nursing homes in the state failed to measure up to California's minimum staffing benchmarks. A minimal rise in average salary for nursing assistants by less than one dollar was not sufficient to cover inflation rate increases. Even higher-paid nurses had a fast turnover rate, with 7 in 10 resigning from their jobs in 2006.

But average spending on direct patient care went down by 3.6 percent, while complaints of patient mistreatment proven went up by 36 percent.  Charlene Harrington, the lead author of the study, wrote as her comment, quoted by the Los Angeles Times, "They got so much money, they should have been able to do something."

See also the L.A. Times article on this study which added the following:

California nursing homes bolstered their bottom lines with $590 million that state lawmakers provided them to better tend to the poor, while patient care declined by several key measures such as turnover among nurses increased slightly, with nearly 7 in 10 leaving their jobs that year, the amount nursing homes spent on direct patient care actually decreased by 3.6%, and substantiated complaints of patient mistreatment increased by 38%. State and federal regulators cited homes for 6% more violations.  Said Michael Connors of California Advocates for Nursing Home Reform, a patient watchdog group, "to a great degree, no one knows where the money went and how it was used. What's clear is it hasn't been used for beneficial effects on residents, which is appalling."

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Seniorjournal.com has a great summary of the bill introduced by Senators Kohl and Grassley aimed at improving the quality of care in nursing homes with more and better information for consumers on the Nursing Home Compare Website published by The Centers for Medicare & Medicaid Services.   Supporting the bipartisan bill are the Service Employees International Union (SEIU) and the National Citizens’ Coalition for Nursing Home Reform (NCCNHR).

The bill:

? Enables the residents and the government to know who actually owns the nursing home

? Strengthens accountability requirements for individual facilities and nursing home chains, including annual independent audits for nursing home chains

? Improves Nursing Home Compare by including a nursing home’s ownership information, the identity of participants in the Special Focus Facility program, a standardized complaint form and links to nursing home inspection reports

? Provides more transparency of a nursing home’s expenditures by requiring more detail in cost reporting

? Provides for improved reporting of nurse staffing information so that apples-to-apples comparisons can be made across nursing homes

? Brings uniformity and structure to the nursing home complaint process by requiring a standardized complaint form and complaint resolution processes that includes complainant notification and response deadlines

? Strengthens available penalties by making them more meaningful. 

Instead of imposing civil money penalties (CMPs) up to $10,000, the Secretary would be able to impose a range of penalties of up to $100,000 for a deficiency resulting in death, $3,000-$25,000 for deficiencies at the level of actually harm or immediate jeopardy and not more than $3,000 for other deficiencies. 

The Secretary would be able to reduce CMPs for facilities that do not appeal CMPs and for self-reporting deficiencies below the immediate jeopardy level or the actual harm level if the harm is found to be a “pattern” or “widespread” or those resulting in death. 

Penalties must be collected within 90 days, following a hearing.

? Equips the Secretary with tools to address corporate-level problems in nursing home chains by giving the authority to develop a national independent monitor program specific to multistate and large intrastate nursing home chains

? Provides greater protection to residents of nursing homes that close by requiring advance notice of the closure as well as the development of a transfer and relocation plan of residents

? Requires a study on the role that financial issues play in poor-performing homes

? Requires a study on best practices for the appointment of temporary management for nursing homes as well as barriers

? Requires a study on barriers to purchasing facilities with a record of poor care

? Authorizes demonstration projects for nursing home “culture change” and for improving resident care through health information technology

? Improves staff training to include dementia management and abuse prevention training as part of pre-employment training

? Requires a study on increased training requirements either in content or hours for nurse aides and supervisory staff

Hopefully, this bill will pass Congress and get proper funding in the budget.

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Studies show a significant decline in quality of nursing home care for blacks compared to whites.
Elderly black Americans in nursing homes get worse care than that enjoyed by their white counterparts.  "If you're black, you're much more likely to get your care in a nursing home that's not so good, relative to nursing homes that are serving predominantly white patients," Dr Vincent Mor, head of the department of community health at Rhode Island-based Brown University's school of medicine, told AFP on Tuesday.

Mor was a lead author of the study which looked at "racial segregation in US nursing homes and its relationship to racial disparities in the quality of care."  The study cited race data from nursing homes found US nursing homes remain relatively segregated by race.

"Blacks are much more likely than whites to be located in nursing homes that have serious deficiencies, lower staffing ratios, and greater financial vulnerability," the study showed.

Another study led by Brown University researchers and due to be published in June in the Health Services Research medical journal, looked at the rate of hospitalization of nursing home residents.
That study showed that 24.1 percent of black nursing home residents required hospitalization  compared with 18.5 percent white residents.   It found that nursing homes "with high concentrations of blacks had 20 percent higher odds ... of hospitalization than residents in nursing homes with no blacks", and linked the quality of care to the reimbursement policies of Medicaid, the US program for those unable to pay for healthcare.

The rate of hospitalization was an indicator of performance, as were "a whole variety of different measures of quality in terms of regulatory compliance, staffing levels, and so on," Mor explained.

"Both studies clearly suggest that nursing homes which have a predominance or much higher proportion of African-American residents perform more poorly," Mor said.

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