I was recently speaking with someone about a woman who worked for a non-profit nursing home for many years. She liked it there and the facility provided good care. Then the facility was sold to a for-profit corporation. Overnight, staff hours were cut, pay was cut, and care declined. The person I was speaking with could not believe this could happen–I was not surprised as sadly I’ve seen this occur many times.
If an administrator at a non-profit tells her board of directors she made a little money that year and gave great care, she’s applauded. However, if that same administrator tells the same thing to a for-profit board, she’s getting fired. The replacement knows that staffing is the biggest expense and that’s where you will see the cuts.
I’ve written before about how important it is to know what prescription medications are being administered in nursing homes and long term rehab facilities. Many do not have good efficacy, may be dangerous, or may cause problems when mixed with other medications. A new study indicates it is now also important to find out what over the counter (OTC) medications are being given.
The study, reported in the Observer, showed a link between certain medications in the class called anticholinergics and cognitive impairment in the elderly. OTC medications in this class include Dimetapp, Dramamine, Benadryl, and Unisom. This class of medications also includes the prescription medications Toviaz, Paxil and Seroquel. In the study, people using these types of medicines exhibited reduced brain function and increased brain atrophy. Specifically, the study showed that use of these meds affected immediate memory recall and cognition, and may also induce cell death.
According to Medicare fraud reports by the U.S. Department of Human Health and Services (HHS), the U.S. Department of Justice’s Medicare Fraud Strike Force team has investigated $7 billion in fraudulent billing since 2007 and prosecuted over 2400 medical professionals and administrators. Part of that amount comes from nursing homes that bill for unnecessary services or for services that have not been provided to the residents that depend on them.
And that fraudulent activity harms nursing home residents as well as our government’s bottom line.
Throughout the country, trusting families are signing nursing home, rehab, and assisted living admission paperwork for someone they care deeply about. These documents are technical, long, and complicated. Hidden in many of these agreements is language that significantly curtails a family’s ability to hold a facility accountable if something terrible happens – including rape, assault, neglect, and death. This language is called “pre-dispute” or “forced” arbitration language.
Pre-dispute forced arbitration is where a person agrees to give up their right to sue in court if an injury or death happens. To be clear, your loved one’s admission to the facility cannot be denied if you don’t agree to arbitration and you get absolutely, 100%, nothing in exchange for agreeing to pre-dispute arbitration.
Often, many of the problems that occur in nursing homes are a direct result of terribly insufficient staffing. This knowledge is born out in studies that show a direct correlation between staffing ratios and quality of care.
Despite all of this clear evidence, many facilities only meet the bare minimum hours required under state regulation. Some aides have told me the ratio on their day shift at a nursing home was as high as 1 aide to 14 residents. For those unaware, aides are the people who feed, bathe, and transfer residents, and they are also responsible turning and repositioning any residents who are at risk for developing bed sores. Having only 1 person in charge of caring for 14 patients at the same time is a catastrophe waiting to happen.
As I’ve written before, the real drivers of healthcare costs are not lawsuits, which studies by Johns Hopkins Medicine found are less than 1% of healthcare costs. The big costs are a result of fraud.
Kindred Healthcare, a large chain of nursing homes, will pay $125 million to settle allegations that it billed Medicare for therapy that was either unnecessary or not provided.
The case was brought forward by two whistleblowers – employees of Kindred who knew that what their company was doing was not right. You can read a full account of the case as reported by the Boston Globe.
Stark & Stark Associate Eric D. Dakhari, member of the Nursing Home Litigation Group, authored the article Momentum Builds Against Use of Predispute Arbitration Clauses in Long-Term Care Admission Agreements, which was published on NJ.com on November 20, 2015.
The article explains one of the dangers sometimes hidden inside nursing home admission statements: predispute binding-arbitration clauses. This is so dangerous because it allows nursing-home corporations to sidestep the civil-justice system if families attempt to file lawsuits against substandard care. This has the double effect of not only preventing these claims from being litigated in New Jersey Superior Court, but also preventing any of these records from being made public and readily accessible.
Arbitration clauses are often written in complicated legal jargon that the average person wouldn’t typically recognize, and they’re typically buried in admission papers. The resident and their family are in the midst of an extremely emotional and delicate decision, so the last thing on their mind is how they would want to handle a hypothetical legal dispute that may or may not occur in the future.
Mr. Dakhari adds, “Momentum is continuing to build for the fight to rid our society of predispute arbitration clauses in long-term care agreements. Before you sign an admission agreement for yourself or your loved one, you are urged to have it reviewed by experienced legal counsel.”
To read the full article, please click here.
Often, elderly people are prescribed blood thinners, otherwise known as anti-coagulants, like Coumadin and several others. While these drugs can significantly help with conditions such as DVTs (deep vein thrombosis) and strokes, they also present unanticipated dangers. If you have a loved one who is on one of these medications, it is important to know the dangers that can occur with their regular use.
It shouldn’t be much of a surprise to learn that the number one issue safety issue for the elderly is the risk of falling. When the elderly fall, it can be very dangerous for two primary reasons. First, they can suffer bone fractures, most particularly to the hip. Hip fractures lead to immobility and many times death as a result. Second, if there is a head trauma, there can be internal bleeding in the brain. This is called either a subdural hematoma or epidural hematoma, depending on where the blood is pooling in the skull.
CMS is currently considering whether or not to ban pre-dispute arbitration documents from nursing home admission contracts. The patient or their family members must sign home admission contracts before they can be admitted, and these contracts are often lengthy and complex. Unfortunately, sometimes these contracts contain a pre-dispute arbitration document, and if the patient signs off on that contract, they will be unable to take a case to court if something terrible happens.
Instead, this document means that they will have to go to private closed-door arbitrations, where families generally have to pay arbitrators large sums of money, and arbitrators are not obligated to follow any of the typical laws and rules of the court.
A recent McKnight’s Long-Term Care News article describes one case in which a nursing home resident died, and an autopsy revealed that she had over 20 times the proper amount of diabetes medication in her blood. After the family was forced into arbitration, the arbitrator ruled in favor of the facility.
A recent article by The New York Times also chronicles how arbitration has been used and abused by businesses and nursing homes to shirk any responsibility to their patients, employees or customers.
If you think inserting pre-dispute arbitration documents into admissions contracts are a bad idea, you’re not alone. 34 U.S. Senators and 15 attorney generals signed a letter banning the practice in nursing homes.
Write your congressperson and ask them to tell CMS to get rid of these unjust documents. Hopefully, the Centers for Medicare and Medicaid Services will end this abusive practice soon.
Our practice group has often written about how corporations unfairly use predispute arbitration agreements to sidestep the civil-justice system and gain disproportionate advantage when addressing their negligent conduct in arbitration.
Often times, corporations slip arbitration clauses into the admission papers and process—at a time when the family is justifiably thinking about the loved one’s health, wellbeing, and quality of life. They are not thinking about their preferred method for resolving a hypothetical legal dispute that may or may not occur in the future.
Now, numerous lawmakers have echoed our sentiment by stating that corporations that use predispute arbitration clauses at nursing homes make it more difficult for negligence and abuse victims to seek redress. On September 23, 2015, U.S. Senator Al Franken led a 34-Senator coalition in calling on the Centers for Medicare and Medicaid Services (CMS) to outlaw predispute arbitration clauses in contracts with long-term care facilities like nursing homes. (Read the letter here)
The letter explains that the “decision to admit yourself or a loved one to a long-term care facility can be difficult. Unfortunately, families often have limited choices due to cost and location constraints. Yet, long-term care facilities sometimes force and often encourage potential residents and their families to waive their legal rights before any harm has occurred and to agree to a dispute resolution forum that may be biased in favor of the facility.”
And, because families are rightly focused on their loved one’s wellbeing during the admission process, the letter explains that “only an arbitration agreement that is entered into after an incident has occurred and after a resident has considered all their legal rights can ensure that resident and their families are not deprived of their rights.”
Michael A. Brusca, a shareholder in our Nursing Home Litigation Group explains: “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 do. If you’ve already signed one, tell the administrator you want to cancel it.”
No family wants to believe that a nursing home or an assisted living facility would hurt their loved one, but it happens all too often. If you or someone you know has been involved in a nursing-home negligence or abuse incident, consult with an attorney immediately to discuss your rights.