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.

 

When I began working in this field, I was astonished to realize that very few nursing homes and no assisted living facilities have a full-time doctor working there.  I found that facilities at times may be staffed almost entirely with nurse aides and Licensed Practical Nurses (LPN) as opposed to Registered Nurses (RN).  RNs received far more training and education than LPNs and are able to do far more.  LPNs are supposed to do most activities under the direction of a RN and their duties are limited to collecting data.  For example, LPNs cannot assess residents for injury after a fall.

This problem was recently highlighted in an article in the New York Times.  It reports a study that shows that 11.4 percent of nursing homes did not have an around the clock RN.  This is significant because, as the article states, “With higher registered-nurse staffing, patients have fewer pressure ulcers (aka bedsores) and urinary tract infections and catheterizations. They stay out of hospitals longer. Their homes get fewer serious deficiencies from state inspectors. Their care improves, but it costs less.”

As a result, legislation entitled Put A Registered Nurse in the Nursing Home Act, or House Vote 5373, was proposed by Jan Schakowsky (D-Illinois) and six other democrats.  You can read the full article here.

I’ve personally encountered facilities that staff with LPNs and then have them conduct activities they should not do, such as assessing injuries and pain.  In some cases they are not competent to do these activities and serious and sometimes mortal injuries go undiagnosed leading to amputation and death.

Why aren’t there more RNs?  In short, cost.  RNs cost more than LPNs, and if the nursing home company does not offer good enough pay, RNs choose higher paying jobs in hospitals.

Hopefully, the legislation will pass and resident will all see the benefits of properly staffed facilities.

I have heard many stories over the years of families that fight to keep a nursing home resident getting physical, occupational, or speech therapy. It used to be that if there was a determination that a resident wasn’t progressing anymore, then Medicare or Medicaid did not pay, and the therapy was discontinued. 

Many families were unhappy. Even though their mom or dad was not improving, the therapy was still beneficial – getting their resident moving or out of bed was simply good for them. They had to go through a lengthy appeals process.

Now however, after an important lawsuit filed against CMS, they are changing their policy.  The New York Times reports that “[b]ecause of the settlement, the agency updated its policy manuals last year. The revisions make clear that if treatment is needed to prevent or slow further deterioration in a patient’s condition, ‘coverage cannot be denied based on the absence of potential for improvement or restoration.’ The update applies to therapy provided in nursing homes, in outpatient clinics and at home.”

This means that even if mom or dad is not improving but therapy is helping, they may be able to still get the therapy. This is good news for seniors and their families.

You can read the full article by clicking here.

 

In an excellent decision, the New Jersey Supreme Court agreed with the plaintiff in this case who cried foul after the Medical Center decided to wait until nearly two years after litigation was completed before attempting to deprive her of her right to a trial by jury. Mandatory arbitration clauses are anti-consumer and antithetical to our Constitution.

To read the article, click here.  

In October 2008 Medicare introduced a new reimbursement system, based upon 2002 industry standards, otherwise known as “never events.”  This related to a determination by a number of non-profit organizations, at least one physician, multiple insurance companies and health care watch analysts who all concluded that many health care related problems should never occur in the hospital setting.

Seemingly agreeing with this standard of care, Medicare made clear to the hospital community that if any one of the enumerated "never events" occurred in a hospital, the hospital would not be permitted to be paid extra by Medicare for resolving the problem that they caused.  Sadly it appears as though hospitals across the country are learning ways to code around this –  in order that they can still charge taxpayers for fixing the problems that they caused ‑ problems which never should have happened.  A number of articles are beginning to appear indicating that the industry itself is quite concerned about the incentives that hospitals face to inaccurately characterize their bills, in order that they do not need to comply with the nearly 5‑year-old Medicare Never Event reimbursement policy.

If any individual becomes aware of an institutionalized policy by an acute care center to defraud the United States government, there exists a number of whistle-blower laws designed to protect this person from retaliation and assist the government in retrieving monies lost to the fraud. 

HealthBridge Management, a nursing home company, was forced to take back workers who were on strike after a federal judge found the management company to not be negotiating in good faith.  HealthBridge was imposing significant wage and benefit cuts before negotiations were deadlocked.
 
The New York Times stated that the strike began “after HealthBridge declared the negotiations deadlocked and then imposed changes that included freezing the workers’ pensions, requiring many to pay at least $6,000 more a year for family health coverage and eliminating six paid sick days and a week’s vacation for many workers.”
 
You can read the full article here.
 
We find that in troubled facilities, problems are generally caused at the ownership and management levels rather than level of the individual worker.  The ownership and management levels are where the staffing quantity and quality decisions are made.  Like any other workplace, a stressed facility creates unhappy workers; in a nursing home or assisted living facility, this can have an impact on resident care.  Many times, individual caregivers are doing the best they can with what they are given.  When this is inadequate, residents can suffer severe consequences.
 

One of the most common mental conditions we see with nursing home residents is Alzheimer’s disease.  It can be very difficult for a family to watch a family member slowly slipping away mentally.  This condition can also increase someone’s risk for falls and other injuries.

The government today announced that a new plan is being launched with “the goal of finding effective ways to prevent and treat the devastating effects of dementia by 2025.”  New studies are being conducted to learn to treat and prevent the illness, as well as optimizing care quality and expand support to families.

You can read the entire article online here.
 

With the passing of the Affordable Care Act (ACA), this nation has seen the beginning of a dramatic shift in both the delivery of healthcare and the means by which payment is made for medical services.  Under the ACA, a new type of medical agency was created, known as Accountable Care Organizations (ACO). These entities are required to coordinate all levels of care in a fashion that is both more efficient and better focused on the provision of quality care.

As we have written on our blog, hospitals will no longer be paid to rectify medical errors which have been deemed as “never events.” This is a class of medical error which non-profit research groups and the federal government alike have determined to be wholly unacceptable in the hospital context. ACO’s are being organized to help prevent the occurrence of never events.

At present, we may be at a crossroads in terms of whether ACO’s will be lead by physicians or hospitals.  Either scenario has its share of opportunities and pitfalls. The New England Journal of Medicine has been following ACO issues and includes some excellent commentary.

Congress has recently proposed House Resolution 5, an extreme bill that would limit our rights and offer a handout to the medical industry by allowing it to go virtually unpunished when patients are harmed or killed. A recent report states that one out of every three hospital patients is sickened, injured, killed or otherwise harmed because of a medical error. This study is just one more, in a long list of reasons why this bill should not be passed.

Congress should focus on improving patient safety and reducing deaths and injuries. H.R. 5 does neither. If this bill is passed, the cost associated with medical errors would be placed on injured patients, their families and taxpayer-funded health and disability programs, instead of the hospitals or medical facilities which negligently let the injustice occur.

Stand up for patients’ rights. Visit the Public Citizen’s website to let your member of Congress know that you want them to oppose H.R. 5.

 

Currently pending in congress is bill HR5 sponsored by Representative Phil Gingrey. If HR5 passes, it would protect some of the worst nursing homes from even the most egregious abuses by severely limiting damages. 

If this law passes, even a nursing home where a resident was admittedly beaten to death or raped by a known dangerous employee, damages are capped despite what a jury believes is the right thing to do. 

Interestingly, when it comes to his own lawsuits, Representative Gingrey seems to have a different point of view. 

A recent article by Public Citizen writes that after a 2004 rear-end car accident, Representative Gingrey sued the other driver and sought damages for “mental pain” and punitive damages to be determined by “the enlightened conscience of fair and impartial jurors.” He claimed he “was injured grievously, has experienced conscious physical and mental pain, suffering, fright and distress in the past, and will continue to suffer the same in the future, for which he is entitled to recover general damages … in amounts to be determined by a jury.”

A Gingrey constituent, who had both her arms amputated as a result of medical errors after her car accident, wrote him a letter asking him to reconsider his bill. 

It seems hypocritical that for his car accident, Mr. Gingrey should have the right to a full and fair jury award, but a person who is seriously injured or killed in a nursing home is restricted.