Nursing Home Lawyer & Attorney : Stark & Stark Law Firm : Elder Care, Senior Care

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I have given a number of talks over the years about assisted living facilities and the dangers they pose to an unsuspecting public.  My concern is based upon the fact that these organizations face much less regulatory control than long term care facilities and often are purely profit oriented.  I have taken a number of depositions in cases surrounding what I consider to be questionable bonus structures - which focus on what is known as census (i.e. filling the beds) more than providing quality care. 
 
This story involves allegations of evicting residents after bleeding their assets dry.  If the allegations are true, it is reprehensible.

You can read the full story here (PDF)

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The center for Medicare and Medicaid services released the 54 worst nursing homes in November, but homes that were showing signs of improvement were left off the list. After bowing to pressure from Democratic lawmakers, the Feds have released the first full list.

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I found an article online recently that discusses a new law in New Jersey that will require hospitals and nursing homes to have appropriate lifts and patient handling equipment available for patients. The new legislation also requires a training program on all of the new equipment for all hospital and nursing home staff members.


The new law will go into effect immediately and will hopefully improve the level of care for all residents impacted by this new legislation. You can read the full article online here.

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Americas Watchdog's Corporate Whistleblower Center is releasing its annual report on Medicare & Medicaid fraud, and according to the group things have never been worse.


The report focuses on nursing homes, drug/medical device companies, not for profit, and boutique hospitals. The group referred to its findings as grim with respect to Medicare and Medicaid over billing & fraud. You can read the full report online here.

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Below is a general overview of nursing homes' responsibility to abide by federal and state law.  Nursing homes that receive medicaid and or medicare are required to comply with federal legislation. Federal legislation calls for a high quality of care. All states must comply with the federal regulations and some states have adopted even tougher laws.


In 1987, Congress enacted legislation requiring nursing homes participating in the Medicare and Medicaid programs to comply with certain requirements for quality of care. This law is included in the Omnibus Budget Reconciliation Act of 1987 (OBRA 1987), also known as the Nursing Home Reform Act. According to OBRA, a nursing home "must provide services and activities to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident in accordance with a written plan of care..."


To participate in the Medicare and Medicaid programs, nursing homes must also be in compliance with the federal requirements for long term care facilities as prescribed in the U.S. Code of Federal Regulations (42 CFR Part 483).


Below is a list of some regulations with which the nursing home must comply:

• Sufficient nursing staff to meet the needs of the residents. (42 CFR §483.30)
• Conduct comprehensive and accurate assessments of each resident's functional capacity. (42 CFR §483.20)
• Develop a comprehensive care plan for each resident. (42 CFR §483.20)
• Prevent the deterioration of a resident's activities of daily living (the ability to bathe, dress, groom, transfer and ambulate, toilet, eat) (42 CFR §483.25)
• Provide activities of daily living such at toileting, grooming, feeding and person hygiene if a resident assessment determines . (42 CFR §483.25)
• Ensure that residents receive proper treatment and assistive devices to maintain vision and hearing abilities. (42 CFR §483.25)
• Ensure that residents do not develop pressure sores and, if a resident has pressure sores, provide the necessary treatment and services to promote healing, prevent infection, and prevent new sores from developing. (42 CFR §483.25)
• Provide appropriate treatment and services to incontinent residents to restore as much normal bladder functioning as possible. (42 CFR §483.25)
• Ensure that the resident receives adequate supervision and assistive devices to prevent accidents. (42 CFR §483.25)
• Maintain acceptable parameters of nutritional status. (42 CFR §483.25)
• Provide each resident with sufficient fluid intake to maintain proper hydration and health. (42 CFR §483.25)
• Ensure that residents are free of any significant medication errors. (42 CFR §483.25)
• Maintain dignity and respect of each resident. (42 CFR §483.15)
• Ensure that the resident has the right to choose activities, schedules, and health care. (42 CFR §483.40)
• Provide pharmaceutical services to meet the needs of each resident. (42 CFR §483.60)
• Be administered in a manner that enables it [the nursing home] to use its resources effectively and efficiently. (42 CFR §483.75)
• Maintain accurate, complete, and easily accessible clinical records on each resident . (42 CFR §483.75)

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One of the greatest obstacles to helping victims of abuse and neglect is the failure of nursing homes to self police. More often than not, we see a complete lack of investigation - even in light of serious allegations against staff. One way for families to overcome this is to immediately call the Ombudsman's office for their state.


The work doesn't end there, though. Families should remain in constant communication with the investigator. DO NOT ALLOW THE INVESTIGATION TO BE LIMITED TO THE NURSING HOME OR ASSISTED LIVING'S SIDE OF THE STORY. MAKE SURE THAT THE INVESTIGATOR GETS BOTH SIDES.


Our office has had great success over the years in utilizing these investigations to both improve the quality of care and help our clients achieve justice.


Here is a link to a helpful site which provides phone numbers for the Ombudsman's office for each state. And here is a direct link to New Jersey's Ombudsman's home page.

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I found this article which I feel is a very informative article on the improvements and continuing problems of nursing home care 20 years after the Nursing Home Reform Act. Although some changes have come about, there is still much work to be done.

The Kaiser Family Foundation that examines the progress nursing homes have made over the past 20 years since the Omnibus Budget Reconciliation Act of 1987 (also known as the Nursing Home Reform Act) became law reports that though the new act has been in place for over 20 years, there has not been a significant enough change.

You can read more the Nursing Home Reform Act and the Kaiser Family Foundation's study here.

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David Cohen, Shareholder and Chair of Stark & Stark’s Nursing Home Litigation Group, was quoted in the January 16, 2008 edition of US 1 Newspaper, in the article, Choosing the Right Assisted Living Home.

The article discusses the importance of research and careful planning when selecting a nursing home for you and your loved ones, in order to prevent further injuries. Cohen advises families to be aware of the specific statewide and national regulations in place in order to prevent nursing home abuse in under-funded facilities providing inadequate care.

You can read the full article here.

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After being bought out by private investors in 2002, along with 48 other nursing homes in Tampa, Florida, Habana Health Care Center began to suffer, and so did it's residents. Within the first few months the number of clinical nurses at the facility had been cut by half in an effort to cut costs by the facility's new management.  And, according to Florida’s Agency for Health Care Administration, budget cuts were made for nursing supplies, resident activities and other services.

Meanwhile, the investors and operators of the 49 homes throughout the state were making millions. As if that wasn't bad enough, over the three years of budget cuts, 15 Habana residents died from what their families feel was negligent care and since have filed suits in state court. In addition to a severely understaffed team of caregivers, reports found malfunctioning fire doors, unhygienic kitchens and a resident using a leg brace that was broken.

Due to the ever-increasing number of Americans needing elder care, nursing home facilities across the country are being bought out by large investors, who can only see dollar signs as our baby-boomers enter through their doors. The more people admitted to each facility should mean increased support and resources for the home. However, more and more this is not the case.

The severely neglected residents of these homes need more attention and care than ever. Federal and state regulators also said in interviews that budget cuts help explain why serious quality-of-care deficiencies — like moldy food and the restraining of residents for long periods or the administration of wrong medications — rose at every large nursing home chain after it was acquired by a private investment group from 2000 to 2006, even as citations declined at many other homes and chains.

While the suit is still in the beginning stages for the 15 families at Habana Health Care Center, similar cases continue to arise across the country. You can read more on the Habana and other facilities' stories in the New York Times article, At Many Homes, More Profit and Less Nursing.

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A major concern with both nursing homes and assisted living facilities (ALF) is short staffing. In our practice, we routinely find the plaintiff’s injuries are directly related to inadequate staffing. If you have a loved one who is in a nursing home or ALF and are concerned about the staffing speak with the facilities administrator and/or a social worker. If you are unsuccessful contact the Ombudsman’s Office (this is an independent state-run office who advocate for the rights of elderly residents).

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The fourth annual Patient Safety in American Hospitals Study was released recently, and contains very insightful information for patients and their families when choosing a hospital. Safety in hospitals has recently become an overwhelming concern due to the rise of injuries suffered to patients during their hospital stays.

Often times this process can be quite daunting and somewhat confusing if you are not familiar with the all of the available resources provided to assist you. The study provides patient safety incident rates and associated mortality among Medicare beneficiaries, gives an overall patient safety indicator hospital performance assessment, and provides a list of the best-performing hospitals for overall patient safety across the country.

You can read the full April 2007 report here.

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Ocean View Center of Rehabilitation located at 2721 Route 9 in Ocean View, New Jersey, has recently been named by Consumer Reports as one of the twelve most deficient nursing homes in the nation. Ocean View has appeared on all four of Consumer Reports Nursing Home Watch Lists published between 2000 and 2005. For those four lists, Consumer Reports examined state inspection surveys for deficiencies that, in their judgment, raised questions about the quality of care delivered to residents. Consumer Reports examined staffing levels and other quality indicators as well as fines received by Ocean View. If you have a relative who lives in this home, you need to be extra vigilant about the care that person receives. It is advised that you visit often and stay involved in the care planning. And finally, speak up if you notice poor care. Report any concerns to your local long-term-care ombudsman and state regulatory agency.

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A study from the New Jersey Hospital Association released on December 4, 2006 reported that nearly 40% of New Jersey’s hospitals posted a financial loss in the year 2005. It was predicted that that number would grow unless major changes were made in charity care funding and payments from other important participants, and with the major increase in nursing home patients being sent to hospitals, this has become a major concern. Adding to this problem is the issue with health insurance companies not fully compensating hospitals. While these insurance carriers were making record profits, much of the cause for this lies at the expense of the hospitals and ultimately the patients. Ultimately, these changes will inevitably negatively impact upon the many nursing home residents who rely upon quality acute care centers on a regular basis.

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A recent study reported in the Newark Star Ledger and a number of other papers has revealed that New Jersey nursing home residents are more likely to be sent to the hospital, rather than being treated in the nursing home in comparison to nursing home residents in other states. The research further concluded that moving nursing home residents to hospitals, unfortunately, increased their risk of infection, led to disorientation and increased the frailty of the elderly. This is a disturbing study which will require additional attention. The study concluded that based upon data from the year 2000, 23.3% of New Jersey’s nursing home residents were hospitalized during a five month period - making this the highest rate in the northeast. The national average is actually only 17.4%, with Utah having the lowest rate at 8.4%. It was additionally concluded that “many hospitalizations of long-term residents are attributable to problems that could have been prevented with adequate medical care or oversight.”

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Nursing homes are often owned by large corporations, who are often time forced to restrict the level of care given to patients due to budget concerns. The corporations control the nursing home's budget. What we often see in nursing home litigation is that the corporations are instructing these nursing homes to operate on very low budgets. This then effects the level of care the nursing home residents receive. For instance, the nursing homes are often understaffed and don’t have the proper medication and/or devices needed to address the ailments of its residents. Thus without proper funding many nursing homes are train wrecks waiting to happen.

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