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Nursing Home Guilty of Abuse Pushes to Change Rules Limit Legal Exposure

Posted in Documentation & Reporting, Elder Issues

Many times, in the world of nursing home litigation and medical malpractice, you hear things like “caps on damages,” “tort reform,” of “medical review panels.”  These measures are presented as ways to “Stop the crisis!” or “Reign in out of control juries!”  The reality is, there is no crisis, juries are reasonable, and these measures are usually promulgated by nursing home companies solely to avoid liability.

A recent article from WFPL in Louisville, KY, recounts the story of Hazard Health and Rehab Center.  Within the walls of that facility, among other issues, two residents sexually abused a 91 year-old resident and another resident suffered a “gaping pressure ulcer.”  For the sex abuse, the facility paid a fine of $20,000, and for both incidents the facility was sued in civil court.

The nursing home industry in that state backed by among others state Republicans and the Kentucky Chamber of Commerce, want to make-up a law that will require a board of three “healthcare providers” that screen cases for merit – before a plaintiff can even file a lawsuit. This is designed to be yet another hurdle to achieving timely justice.   Helping to bankroll this idea?  Hazard Health and Rehab.

The article goes on to state that it’s the poor state of health care in KY is what’s causing the legal problems, not the law.  According to the article KY has more below average nursing homes than all but 8 other states.  “That just shows there’s widespread abuse, neglect, mistreatment of residents occurring in far too many nursing homes,” said Brian Lee, executive director of Families for Better Care.

You can read the full article here.

Be cautious whenever you hear of measures that limit a person’s ability to hold anyone person or company accountable in court.  There’s usually a lot of money behind the idea, and very little consideration for the good of the population. If you have any questions about a Nursing Home situation, contact Stark & Stark today.

 

Stark & Stark Nursing Home Negligence Attorneys Guest Speak at Local Radio Station

Posted in Elder Issues, Levels of Care, Nursing Home Information

Have you ever wondered about the difference between for profit and not for profit nursing homes? Listen to Stark & Stark Shareholders, David Cohen and Michael Brusca, along with Associate, Eric Dakhari, as they explain the difference and how it may affect you and your loved ones.

Arbitration – Unnecessarily Giving up Your Rights

Posted in Nursing Home Information

In my practice, I am currently responding to a motion to dismiss a lawsuit because of a forced arbitration document that was slipped into admission paperwork.  “Arbitration” is basically something written in the fine print where a person “agrees” to waive their right to a jury trial and go to a secret forum for disputes.  These arbitration documents are so offensive they used to be illegal in New Jersey nursing homes.

The reasons companies do these are because they typically pick the rules and an arbitration company, and historically they get better results at arbitration then they do in court.  Also, a person generally has to pay very high costs at arbitration – costs they would never pay in court.  Most importantly, what happens in arbitration is secret – so even for the worst care or abuse no one will ever know what happened if there is an arbitration.  You never see these things explained in the fine print – it will just tell you how much cheaper and faster arbitration is, which is frequently a lie.

These pre-dispute “agreements” only help the company, and never the resident or the resident’s family.

To be clear, you do not need to sign these things.  They do not help you – they can only hurt you.  Because of the significant advantage arbitration gives to a company, they will agree to arbitration after something terrible happens if you want it after the fact.  There is no reason to sign them before a person is injured or killed.

A new video by a pro-consumer group documents how abusive arbitration can be.  In one case, a woman was fired because of her military service, something that is totally illegal.  The arbitrator disregarded the law and found for the company.  You can watch the brief video here:

When admitting a resident, if you see these documents slipped into the admission paperwork don’t sign them.  You don’t have to, and you’re only hurting yourself.  If you’ve already singed one, tell the administrator you want to cancel it.  No one wants to believe that a resident will hurt in a nursing home or assisted living facility but it happens.  If it happens, you want to be sure you have the full might of the law at your disposal.

Welcome Reform Measures to Correct Questionable Self Reporting Staffing Levels in Nursing Homes

Posted in Documentation & Reporting, Elder Issues, Levels of Care, Nursing Home Information

As an advocate in New Jersey  for nursing home residents, one of my greatest frustrations has been the lack of oversight for self reported staffing levels.  This has lead to an extraordinarily low incidence of short staffing citations – and worse yet, has allowed some understaffed facilities to crow over their lack of such citations.

The reality on the ground is that an alarmingly high number of long term care facilities CHOOSE to short staff their facilities to increase profit levels.  By falsifying staffing numbers, they can often evade scrutiny on this extremely important issue.  That is, nursing homes rarely have their payroll records cross referenced against their reported staffing numbers – leaving them free to fudge the math.  In our cases, we have uncovered such records, but I am fearful that this is just the tip of the iceberg.  Indeed, this fear is supported by the confounded families who see barely a foot on the ground, a complete lack of care for their loved ones – yet no citations from the State for failing to meeting staffing requirements.

Recognizing this problem, the White House just announced additional funding to assist authorities in preventing this type of dangerous conduct.  In the end, residents will benefit – as will overworked staff who need a helping hand to protect these vulnerable folks. If you or a loved one has been impacted by an understaffed nursing home, contact the New Jersey Nursing Home Abuse Attorneys at Stark & Stark today.

Rating the Nursing Homes in New Jersey and Pennsylvania

Posted in News, Nursing Home Information

The official U.S. government website for Medicare provides a tool that allows consumers to compare information about nursing homes. It is called Nursing Home Compare, and contains quality-of-care information on every Medicare- and Medicaid-certified nursing home in New Jersey and Pennsylvania.

The tool creates that information based on the “skilled” care that nursing homes provide, which is care given when you need skilled nursing or rehabilitation staff to manage, observe, or evaluate your health status. For example, skilled care includes intravenous injections and physical therapy.

The “Overall 5-Star” Rating System

To rate the nursing homes, the tool uses an “Overall 5-Star” rating system. It assigns 1 to 5 stars, with more stars indicating better quality, across three “domains.” Those domains include: (1) Health Inspections, (2) Quality Measures, and (3) Staffing. The tool reports the ratings in table or profile form. Here is example of a nursing-home profile:

The Domains

The tool generates the rating for the  Health Inspection Domain based health-inspection ratings from the three most recent annual-comprehensive inspections, and inspections instigated in response to complaints in the last three years. It places more emphasis on recent inspections.

It generates the rating for Quality Measures Domain by combining the values on 9 out of 19 Quality Measures. Some of those measures include, for example:

  • the percentage of long-stay high-risk residents with pressure ulcers;
  • the percentage of long-stay residents experiencing a fall with major injury; and
  • the percentage of long-stay residents who self-report moderate to severe pain.

The tool derives those values from clinical data that nursing homes regularly report on a form called the Minimum Data Set.

And finally, the tool generates the rating for the Staffing Domain based on (1) the Registered Nurse (RN) hours per resident day, and (2) the “total staffing” hours per resident day. Total staffing includes: RNs, Licensed Practical Nurses, Licensed Vocational Nurses, and Certified Nurse Assistants. Nursing homes report staffing hours, which are from a two-week period just before the state agency conducts an inspection, to the New Jersey or Pennsylvania state-inspection agency. The agencies, in turn, report those data on Nursing Home Compare.

At Stark & Stark, our nursing-home negligence lawyers dedicate their entire practice to prosecuting nursing-home negligence lawsuits. We highly recommend the Nursing Home Compare tool when trying to assess a nursing home’s quality.

The True Cost of Anti-Psychotics and Tort “Reform”

Posted in Elder Issues, Legislation, Medication, Nursing Home Information

A recent series of disturbing stories by NPR report finding with objective data what many of us practitioners know already – that in many substandard facilities residents are over medicated with sometimes dangerous medications just to keep them quiet.  This is disturbing because these medications are sometimes powerful, dangerous, and ineffective.  Some even get “black box” warnings from the FDA.  It is a subject I’ve written about before and you can find the full article here.

The most recent NPR article points out that Texas ranks the highest in the United States for residents receiving anti-psychotic medications.  Interestingly, Texas also has caps on non-economic damages of $250,000 – i.e., no matter how negligent a company is and how much pain and suffering they cause, they are capped at $250K in non-economic damages.  Is this a coincidence?

With caps on damages, nursing home companies can more easily factor in lawsuits as a “cost of doing business” as opposed to spending more money to do right by people.  With no caps on damages, juries are free to award what they believe are just damages based on the facts.  The uncertainty of a jury verdict often forces companies to spend the money to do the right thing.  With caps, they know exactly what they’re facing.  It’s yet another reason caps do nothing but hurt people.

Knowing your resident’s medications and the side effects is important.  Don’t be afraid to ask about them in care conferences.

Non-Disparagement Clauses: Buying the Silence of Guardians

Posted in Documentation & Reporting, Elder Issues, Legislation, News, Nursing Home Information, Support & Resources

I’ve noticed in my practice a dangerous and burgeoning phenomenon. That is, the emergence of non-disparagement clauses for people who know the dangerous secrets of the worst of the worst long-term care facilities. I am finding that the vast majority of these clauses are found in assisted living facilities. These organizations appear to have very organized corporate structures and, upon the termination, retirement or resignation of high-level personnel, they sign legal separation agreements, which also include aggressively enforced non-disparagement language within them.

I first began to notice this phenomenon when I would take depositions and find that people who were fired under very questionable circumstances absolutely afraid to say anything negative about their former employer. It became apparent to me that they feared corporate retribution if they still worked in the healthcare facility and even worse with regard to whatever amounts of money they were paid upon their termination.

Finally, as I began to look more deeply into this, I got witnesses to agree that upon leaving either assisted living facilities, or at times, nursing homes, they would sign legal separation agreements which would not permit them to say anything at all negative about their former employer. With the exposure of these stifling contracts, the truth became self-evident.

Still, these are people are the guardians of our most frail and vulnerable citizens. These are people who know the secrets of poor facilities that could be remedied. These are people who can help folks like me who advocate for nursing home residents to hold wrong-doers accountable. It is a corporate philosophy that through the use of payoffs, chills the speech of the most important people who can shed light on the growing problem of corporate greed being placed over the welfare of nursing home residents.

As we have said in prior blogs, we have uncovered false employees in nursing homes being paid by taxpayer dollars. We have found exorbitant rent being paid by  nursing home owners to themselves for the property they own, while complaining that Medicare and Medicaid dollars are not enough to take care of residents. They do this while paying off in full their investment properties multiple times over.  Now, with this new corporate philosophy, the only people who can truly tell the truth are being silenced.

Former employees should know that there are laws in place to protect them from retribution for being honest.  Also, there are powerful whistleblower laws empower people to get the truth out about fraud and abuse of our most vulnerable citizens.  If in doubt about such agreements, people should obtain representation before signing and think long and hard before allowing their silence to be bought. Contact the Nursing Home Attorneys at Stark & Stark with any questions.

 

Water’s Edge Nursing Home and Liberty Royal Rehabilitation and Health Care Center on the CMS Special Focus Facility List

Posted in Documentation & Reporting, Elder Issues, News, Nursing Home Information

A very convenient tool for concerned families to evaluate nursing homes is the “Medicare Compare” website.  Included within this is a section that designates what are known as “Special Focus Facilities.”  A Special Focus Facility represents the bottom 1% or 2% of all nursing homes in the country which have demonstrated not only under-performance, but whose corporate practices have demonstrated a significant danger to members of our community who entrust them to care for their loved ones. http://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/CertificationandComplianc/Downloads/SFFList.pdf

In order to become a Special Focus Facility, a nursing home must demonstrate a significant period of time of a failure to comply with all the safety rules and regulations promulgated by the Federal government to protect their elderly residents and a failure to address concerns expressed by State and Federal surveyors. Currently, New Jersey has two special Focus facilities.  These are Water’s Edge Rehabilitation in Trenton, New Jersey and Liberty Royal Rehabilitation and Health Care Center, in Tinton Falls, New Jersey.

Consumers should carefully think twice before entrusting a loved one with a facility with this dangerous designation, although many of the better nursing homes in New Jersey have been Special Focus Facilities and have ostensibly cleaned up their act. That is, the Special Focus Facility program is one which works.  Many well meaning organizations take this designation quite seriously and improve their conduct.  However, some facilities have been forced to close their doors because of this designation.  As bad as that seems to many of the residents, it is unquestionable that the Special Focus Facility designation and the hard work of surveyors protects residents whose lives are placed at risk because of dangerous corporate conduct.

Staffing Levels Lower than Reported

Posted in News, Nursing Home Information

A new study by Public Integrity finds widespread discrepancies in actual staffing levels and those reported to the state and federal government.  You can read the full article here.

I often find significant issues with the administration, management and operating of nursing homes in the cases we prosecute – things that families couldn’t possibly know when they select a facility.  The Public Integrity staffing study illustrates this problem because it points out that even though a facility may have a great rating on staffing from the government that you can see on-line, that rating may be based on bad data.

To avoid this problem, I always recommend asking the right questions when admitting a resident.  When it comes to staffing, I recommend specifically asking about ratios of CNAs to resident – not nurses, as these are not the workers that do the majority of the hands-on care.  The lower the ratio, the better.  A day shift ratio of 1:10 could be a real problem, and 1:6 or 1:7 is far better.  You can imagine what it’s like to care for 10 dependent elderly people, many with dementia and Alzheimer’s, at one time.

I also recommend asking if there is a policy of exceeding the state minimum requirements.  New Jersey has minimum nurse hour requirements.  Many administrators say in their depositions that “adequate staffing” means simply meeting the state minimum hour requirements.  Unfortunately, the state minimum hour requirements just track “bodies in the building.”  They don’t take into account how good the aides are, how morale is, how much the aides like the work, how hard they work, and how experienced they are.

I also recommend asking about weekend and holiday hours, which some families report are much lighter than they should be.

A family should ask how a facility handles a CNA shortage.  I would ask about how many agency or contract workers the facility uses.  These are people who come in from an agency when there are shortages.  Contract or agency personnel are generally considered sub-standard because they don’t know the residents or the facility and just come in and get periodic assignments.  Another way some facilities fill open positions is simply making aides work double shifts – a daunting task which invites disaster.

Making sure there are adequate staffing is paramount to good care.  Asking the right questions is key to making sure facilities have enough people to do the required work.

Challenges Faced Within a Growing Elderly Population

Posted in Elder Issues

I read with great interest the recent article in The New York Times about the particular challenges faced within a growing elderly population and an alarming statistic with regard to the number of deaths caused by falls in the elderly.

A 2012 study revealed that 24,000 elderly individuals died from falls – a number that was nearly doubled since the prior study.

The science behind finding a balance between independence and safety is nothing new, but is advancing.  Many of the researchers involved in protecting the most frail of citizens have engaged in a technique wherein the researcher will actually wear special glasses that decrease their visual acuity, helping them appreciate the challenges faced by the elderly in navigating things as simple as hallways, carpet, and even toilet seats.

Embedded within this article are some fantastic live action animations that I highly recommend our readers to view.  They demonstrate what happens to one’s ability to differentiate surfaces with degrading vision.  By pressing play, one can see how the elderly will fall, not appreciating obstructions that stand in their way.  Many of the fixes for this are quite simple.  Most seem to involve painting contrasting colors in areas such as step‑ups for showers or even toilet seat covers. Approximately $30,000,000.00 was spent on this recent study and I am sure it will pay off great dividends toward our elderly population.

All studies have confirmed that a fall suffered by an elderly person is quite dangerous and just as often, fatal.  It is of utmost importance for us not only to take good medical care of our senior citizens, but to ensure that their surroundings are populated by enough safety personal to protect them and that the facility itself is designed with the elderly in mind. To read more, click here.