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Large Nursing Home Chain, Kindred, Caught Defrauding Medicare

Posted in News, Nursing Home Information

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.

Momentum Builds Against Use of Predispute Arbitration Clauses in Long-Term Care Admission Agreements

Posted in Publications

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.

The Lurking Dangers of Blood Thinners in Nursing Homes

Posted in Elder Issues, Injuries, Medication

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.

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CMS Considers Banning Pre-Dispute Arbitration Due to Abuses by Nursing Homes

Posted in Elder Issues, Protecting Your Rights

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.

Lawmakers Are Rejecting Pre-Dispute Arbitration Agreements

Posted in News, Protecting Your Rights

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.

Troubled Nursing Homes with History of Poor Care Make Special Government List

Posted in Levels of Care, Nursing Home Information

Recently, the August 2015 Special Focus Facility List was published by the Centers for Medicare and Medicaid Services (CMS). The CMS regularly visits nursing homes to assure that they are administering the quality of care that Medicare and Medicaid require. With these regular visits, the CMS will identify any deficiencies in the quality of care being provided, as well as if the facility is meeting safety requirements. The CMS will also examine any previous noted deficiencies and how promptly they were or were not handled. These criteria will determine the facility’s overall survey from the CMS.

Additionally, if serious problems are left unchecked in these facilities, the CMS can opt to terminate the special focus facility’s participation in Medicare and Medicaid.

Once the CMS’ “survey” teams gather their data from the facilities, this is submitted to a master list, The Special Focus Facility List. This list includes all facilities with a history of care problems and/or poor surveys, and is updated monthly by the CMS. Every special focus facility must be visited by a CMS survey team at least twice a year.

If you would like to see the whole list, please visit the CMS website.

It is also important to note that if you go to Medicare’s Nursing Home Compare website and look up any individual nursing home, you will immediately be able to tell if that facility is on the Special Focus Facility List. Any facility on the list will have a yellow triangle with an exclamation point next to its name. Additionally, you can use the website to see other ratings for the facility, including health inspections, staffing and quality measures. At the moment, there are several nursing homes in Pennsylvania and New Jersey on the CMS’s most current Special Focus Facility List.

If you have a loved one in a facility on the Special Focus Facility list, you can go to the administration and demand they tell you why the facility on the list and what they plan to do to improve the quality of care provided to be removed from the list. You do not get on this list when you are meeting even minimal standards.

Pennsylvania Gets Tough on Nursing Homes for Neglect, Lying and Unsanitary Conditions

Posted in Documentation & Reporting, Elder Issues, News

In recent news in Pennsylvania, the Office of the Attorney General is suing the nursing home chain, Golden Living Center, for allegations that they repeatedly refuse to meet its residents most basic needs. Further allegations reported by WPXI include falsifying records and lying to state inspectors.

It looks like Pennsylvania is beginning to catch on to what those of us that practice in this area have long known: some nursing home companies are willing to put residents in jeopardy in order to increase profits.

The vast majority of the claims we prosecute are not about individual care givers; they are about business wrongdoing. When we prosecute these claims, we prosecute companies, not people. Most of the problems are the result of board room decisions, not individual failings. Most aides and nurses are doing the best with what they have – unfortunately, what they have is oftentimes not enough.

You can read the full article here.

False Nursing Home Staffing Levels Cause Families to Unwittingly Subject Residents to Poor Care

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

When deciding whether to place a loved-one into a nursing home, families attempt to determine whether the nursing home is capable of providing the necessary quality care. Most families visit the nursing home, as well as check the U.S. government’s Nursing Home Compare tool at Medicare.gov.

Despite their efforts, some nursing homes have purposefully misrepresented their ability to care for its residents.

Overstating Staffing Levels

According to the latest updated report from the Center for Public Integrity, over 80% of nursing homes have consistently overstated their staffing levels to Nursing Home Compare in an apparent bid for higher rankings at the site. The report explained that staffing overstatements occurred for all types of nursing positions, but were particularly high for registered nurses—the most skilled and highest paid workers.

Our nursing home negligence and abuse attorneys have long since understood that the amount of care, especially by registered nurses, is strongly connected to the quality of care provided to nursing home residents. For example, my associate Eric D. Dakhari, Esq. explained in a recent blog article that for understaffed facilities, evidence shows increased incidents of—among other critical issues—pressure ulcers, catheterized patients, urinary tract infections; as well as an increased likelihood of death.

As a nursing home lawyer, I have too frequently litigated nursing home negligence and abuse cases where the low levels of care were associated with a resident’s severe injury or death.

Nursing Home Compare: The Goal

The government website’s goal is to assist families in evaluating a nursing home’s ability to provide adequate “skilled-nursing” care, which is care given when you need skilled nursing or rehabilitation staff to manage, observe, or evaluate your care.

A Flawed Self-Reporting Process

The Nursing Home Compare website explains that each nursing home must self-report its staffing hours to its state survey agency and that the reported staffing hours reflect the staffing of RNs, LPNs, CNAs, and PTs from a two-week period just before the state inspection.

The government website displays the self-reported nursing home staffing hours as the number of staff hours per resident per day, which is the total number of hours worked divided by the total number of residents.

It is important to note that the website does not necessarily show the number of nursing staff present at any given time, or reflect the amount of care given to any one resident.

Our nursing home attorneys know that many nursing homes commit additional human and financial resources to prepare for the state inspections, and as a result, the self-reported staffing levels do not accurately reflect the typical staffing levels in the nursing home. This is particularly important because some nursing homes must provide more nursing staff due to the conditions of their residents, and other factors.

Recommendation to Families

Our nursing home negligence and abuse lawyers understand the difficulty that families face in selecting a nursing home based on false data. My partner, Michael A. Brusca, Esq., has previously recommended that families ask the nursing home about its CNA-to-Residents ratio. He explained that determining that ratio—as opposed to the RN or LPN ratio—is important because the CNAs are the frontline workers that provide the majority of the hands-on-care to residents.

If you or someone you know has been involved in a nursing home negligence or abuse incident, I recommend that you consult with an attorney immediately to discuss your rights.

Dementia and Alzheimer’s Patients: The Standard of Care of Nursing Homes

Posted in Elder Issues, Injuries, Nursing Home Information

In nursing-home neglect and abuse cases, the victims of the nursing-home negligence or abuse often suffer from some form of dementia, including Alzheimer’s, which is a specific type of dementia that accounts for 60 to 80 percent of dementia cases.

Alzheimer’s is a progressing disease. That means that it worsens over time, causing cognitive and behavioral problems. For example, cognitively, a person may have difficulty thinking and trouble understanding. They may also experience forgetfulness, confusion, and disorientation. And behaviorally, a person may exhibit irritability, agitation, lack of restraint, and difficulty with self care.

Behavioral Changes

For many, the behavioral changes present the most challenging and distressing symptoms from Alzheimer’s. The symptoms stem from a progressive brain-cell deterioration. Importantly, they may become worse through medication, environmental influences, and some medical conditions.

Environmental Triggers for Behavior Changes

Beyond the physiological reason for the behavior symptoms, changes in a person’s surroundings also often play a role in triggering those symptoms.

When I interview family members and nursing-home nurses in preparation for litigating a nursing-home negligence or abuse case, they often describe events or changes in the person’s surroundings that have created additional stress that can be difficult for an Alzheimer’s patient to manage. Some of those events and changes include:

  • Moving to a new residence, nursing home or new room within a nursing home;
  • Changes in a familiar environment or caregiver arrangements;
  • Misperceived threats;
  • Admission to a hospital; or,
  • Being asked to bathe or change clothes.

So, while the patient is trying to make sense out of an increasingly confusing world, those environmental factors increase the patient’s fear and fatigue while exacerbating the patient’s exiting irritability, agitation, lack of restraint, and difficulty with self care.

Standard of Care for Nursing Homes

Nursing homes and the nursing-home corporations that operate them know, and have reason to know, that environmental changes place the Alzheimer’s or dementia patient at greater risk of experiencing a serious nursing-home injury.

When I depose a Director of Nursing in a nursing-home neglect and abuse case, the nursing director admits and acknowledges the serious risk of injury that Alzheimer’s patients face while in the nursing-home facility. Also, the nursing director admits that the nursing-home corporation and its nursing staff must provide those patients with treatment and services that meet a specific standard of care.

The standard of care requires that the nursing home develop an individualized care plan to promote the patient’s health, protect the patient’s safety, and secure the patient’s dignity. The nursing-home staff must implement the treatment and care, from the care plan, on a daily basis—without fail. And then, the nursing home must evaluate that treatment and care to ensure its effectiveness and make changes to the plan when appropriate.

Nursing Home Negligence and Abuse

When a nursing-home corporation and its nursing-home staff follow the required standard of care, the nursing home can prevent the patient from experiencing preventable catastrophic falls, avoidable pressure ulcers, and other serious injuries.

If the nursing-home corporation and the nursing-home staff fail to follow the required standard of care, then the patient may experience serious physical injury, and the nursing-home corporation is responsible for the harms and damages that follow. If you or someone you know has been involved in a nursing home negligence incident it is recommended that you consult with an attorney immediately to discuss your rights.

Moderate Drinking NOT for the Elderly

Posted in Elder Issues, News

While the risks of drinking moderately in adults is the subject of debate, a new study published by the American Heart Association and reported on by NDTV.com confirms that for the elderly, the debate is over – put the alcohol away.

The study showed that alcohol caused cardiomyopathy – a condition where the heart scars or grows thicker and more rigid – in the elderly population with moderate drinking. Moderate drinking is defined as one or two drinks a day. Women were more susceptible than men to this damage.

If you would like to read the full article, please click here.