Nursing Home Law Blog

AAJ Releases Insurance Report

dcohen@stark-stark.com (David Cohen) — Tue, 18 Nov 2008 14:05:00 -0500

David Cohen, Shareholder in the Personal Injury Group, concentrates his practice in nursing home negligence and abuse claims, elder abuse and assisted living facility litigation. Mr. Cohen is the Chair Elect for the American Association for Justice’s (AAJ) Nursing Home Litigation Group.

AAJ released an original research report on the insurance industry, “Tricks of the Trade: How Insurance Companies Deny, Delay, Confuse and Refuse.” The new report describes some of the most egregious ways the insurance industry attempts to make money at the expense of consumers. Additionally, the new report details six tactics that target policyholders, names the insurance companies that are engaging in these practices, and lays out what consumers can do to prevent abuses and fight back.

You can read the full report here (PDF).

Corporate Ownership of Nursing Home Facilities

dcohen@stark-stark.com (David Cohen) — Thu, 13 Nov 2008 08:00:00 -0500

I am slated to soon speak before the Tennessee Trial Lawyers Association on the topic of corporate ownership of nursing home facilities and the means by which many, though certainly not all, corporations will underfund the facilities and undertrain their employees. Sadly, we are seeing more and more of this practice these days where the front line healthcare workers simply are not provided with the tools that they need to provide the care that they desperately want to provide for nursing home residents. I am thrilled to enjoy the panel with a number of very distinguished speakers from whom I am confident I will learn a great deal.

Improving the Quality of Care

dcohen@stark-stark.com (David Cohen) — Tue, 11 Nov 2008 09:43:18 -0500

I recently returned from Austin, after attending a national nursing home conference for the American Association for Justice. While my talk involved the topic of more focused deposition taking, I must say that I was truly impressed by the effort and dedication of all of the other speakers. I am continually impressed by the level of dedication all of the attorneys I meet at these national conferences have toward protecting the elderly and infirm from abuse and neglect. One of the themes echoed through all of the talks was that of our common mission in improving the quality of care for nursing home residents all across the country.

"Corporate Walls" in the Nursing Home Industry

dcohen@stark-stark.com (David Cohen) — Fri, 07 Nov 2008 16:30:00 -0500

We have written in this blog before about the major problems caused by the Byzantine and mind-dizzying fashion by which corporate ownership has been altered in recent years in the nursing home industry. All of this started as a result of a number of articles printed in healthcare law journals which literally provided a step-by-step recipe through which unscrupulous nursing home owners could hide behind multiple corporations to avoid accountability for injuries and even deaths which occur in their nursing homes. As I negotiate a number of very significant cases, many owners seem to feel a false sense of security that their conduct is immune from consequence because of the so called “corporate walls” placed between them and the very people harmed by underfunded, poorly staffed and systemically failing homes. The reality is that we cannot and will not allow this lack of accountability to occur. More and more we are uncovering evidence to demonstrate that the so called “investors” of these homes also operate them and cause them to be dramatically underfunded. The Supreme Court of Illinois provided an excellent ruling in allowing for direct liability of owners of an enterprise which underfunded its franchisees and thus allowed two people to be killed as a result of worker safety violations. Although the Illinois Supreme Court case did not involve a nursing home, the concepts are no different. Owners who intentionally allow profits to be placed over the welfare of people cannot and will not escape responsibility for their conduct.

Nursing Home Transparency and Improvement Act of 2008

dcohen@stark-stark.com (David Cohen) — Fri, 07 Nov 2008 15:29:41 -0500

I am very gratified that as recently as October 7, 2008, the Nursing Home Transparency and Improvement Act of 2008 has now made its way into the United States House of Representatives, supported by two Democratic members of the House, along with both a Democrat and Republican from the Senate. The Act is being improved to include many more provisions, not only to produce transparency with regard to the problems we see these days with ownership, but additionally, to include much more with regard to improvement of resident care. The fact that this bill enjoys bipartisan support hopefully bodes well for its eventual passage.

National Rating System for Nursing Homes to Go Online in December

dcohen@stark-stark.com (David Cohen) — Thu, 30 Oct 2008 08:00:20 -0500

Here is an article on the National Rating System for Nursing Homes. It is with mixed feelings that I can report on the new CMS ratings system for nursing homes. Although I appreciate any effort to get more information to consumers, a nursing home's performance and systemic issues which may plague it are very nuanced. I do not believe that a star rating system will provide enough valuable information and might serve to dumb-down the screening process for consumers. All residents (and their needs) are different. A nursing home that is weak in some areas may be strong in others. That being said, I am sure that a very poorly rated facility will be doubly motivated to improve its score. Time will tell how well the new system will work.

Nursing Home Suits Face New Litigation Hurdles

dcohen@stark-stark.com (David Cohen) — Wed, 29 Oct 2008 08:15:23 -0500

David R. Cohen, Shareholder of Stark & Stark’s Nursing Home Litigation, was quoted in the article Nursing home suits face new litigation hurdles published by LawyersUSA on October 9, 2008.

Mr. Cohen comments on the number of obstacles for Plaintiffs lawyers seeking negligence claims against nursing homes. Mr. Cohen discusses how nursing home owners often elect not to insure the nursing home. Many states do not require nursing homes to carry insurance, which can affect how plaintiffs’ attorneys bring suits.

You can read the full article here (PDF).

Government List Ranks Worst Nursing Homes

bmurphy@stark-stark.com (Brian Murphy) — Thu, 05 Jun 2008 15:39:45 -0500

Seeking a nursing home for a loved one in the Boston area? You will want to check out this list first.

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.

"Safe Patient Handling Practices Act" Becomes Law in New Jersey

bmurphy@stark-stark.com (Brian Murphy) — Mon, 02 Jun 2008 08:03:11 -0500

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.

Americas Watchdog's Corporate Whistleblower Center Releases Annual Report

bmurphy@stark-stark.com (Brian Murphy) — Thu, 29 May 2008 08:04:59 -0500

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.

Know Your Rights

bmurphy@stark-stark.com (Brian Murphy) — Fri, 23 May 2008 08:16:38 -0500

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)

Heparin Injury Attorneys Investigating Potential Claims

dcohen@stark-stark.com (David Cohen) — Tue, 20 May 2008 16:57:16 -0500

Lately there has been a lot of news about contaminated batches of the blood thinning drug Heparin injuring patients. The injury attorneys of my firm are actively investigating potential Heparin injury claims on behalf of people across the country.

After it came to light that contaminated Heparin was causing sever allergic reactions and death in certain patients, the FDA issued a recall of the drug which was manufactured in China.

If you or a loved one were victim of a severe allergic reaction or death after being administered Heparin you can have an experienced injury lawyer from my firm investigate your potential case.

Digitek Injury Lawyers Investigate Possilbe Claims

dcohen@stark-stark.com (David Cohen) — Mon, 28 Apr 2008 10:58:36 -0500

We wanted to inform the readers of our blog of the recent recall for the drug Digitek. Digitek was initially prescribed to treat cardiac arrhythimas and heart failure, but more recently has been known to have devastating effects for those to have taken the medication.

The recall was announced after Digitek tablets were distributed with double the amount of the approved active ingredient. Several incidents of serious injury and death in patients who have taken the drug have already been reported. Some patients have reported toxicity, nausea, vomiting, dizziness, low blood pressure, cardiac instability and bradycardia.

If you or a loved one have suffered a severe illness, injury or death after taking Digitek, you can have an experienced injury attorney from our firm review your potential case.

Call your state's Ombudsman's office if your loved one has been abused in a nursing home or assisted living facility

dcohen@stark-stark.com (David Cohen) — Mon, 21 Apr 2008 08:05:16 -0500

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.

Nursing Home abuse and whistle blowers in New York state

dcohen@stark-stark.com (David Cohen) — Mon, 14 Apr 2008 08:53:00 -0500

Here is an article I recently read, which outlines not only allegations of abuse, but also retaliation against a whistle blower who reported the abuse. The article contains helpful links for families looking to research nursing homes.

Nursing Home Sued by U.S. Department of Labor for unpaid Wages

dcohen@stark-stark.com (David Cohen) — Tue, 01 Apr 2008 11:16:26 -0500

One of the most important responsibilities of nursing home owners is to treat their employees well. This leads to a positive environment, which fosters good care and enthusiasm among staff. As may be seen, the opposite is alleged here in an article stating that the Union City's Manhattan View Nursing Home is being sued by the United States Department of Labor. The suit is seeking unpaid overtime wages for employees of Manhattan View over the past several years.

Tracy bill pushes more options for elderly healthcare

dcohen@stark-stark.com (David Cohen) — Thu, 13 Mar 2008 08:11:34 -0500

I found an article the other day relating to recent legislation that passed in Tennessee to increase options for elderly health care. Two bills sponsored by Tennessee Sate Senators passed the Senate aimed at helping elderly or disabled Tennesseans receive more options in their health care, including staying in their homes for as long as possible.The long term care legislation is part of a series of bills aiming to help citizens “age in place.”

The two bills will broaden the definition of assisted living to include hospice services and make it clear that any assisted-care living facility resident who qualifies for hospice care under Medicare can continue those services and also receive reimbursement for assisted living services.

I think this is a wonderful piece of legislation that I hope will make its way across the country in order to provide increased assistance for our elderly. You can read more on the bills here.

Prevention of Inhumane Care

dcohen@stark-stark.com (David Cohen) — Fri, 07 Mar 2008 09:26:37 -0500

I took a deposition of a nurse yesterday who was charged with the care of my client toward the end of her life. My client was fitted with a leg brace that was significantly too tight. She complained of pain. Her leg was bleeding. No one responded.

To make matters worse, no pain medication was given. This is not humane and it is not acceptable.

Thankfully, many good people are working hard to make the final days of terminally ill patients more comfortable.

I recently found a website which offers tips on how to prevent this sort of inhumane treatment from occurring again.

Special Focus Facilities

dcohen@stark-stark.com (David Cohen) — Fri, 29 Feb 2008 08:06:22 -0500

After receiving tremendous pressure from advocacy groups, CMS has released its expanded list of the most troubled nursing homes in the country. These are known as "Special Focus Facilities."

Acting CMS Administrator Kerry Weems disclosed at a special media briefing Thursday that the “Special Focus Facilities” list had actually grown to 131 nursing homes with poor survey records. The list will continually be in flux, noting the next public update will be in April.

In response to a McKnight's reporter's question, Weems also clarified that from now on providers would be given brief advance notice of their inclusion on the dubious list but no others would learn of list contents until results are refreshed online. When CMS went public for the first time ever, but with just the partial list, in November, consumer advocates loudly complained that nursing home lobbyists and associations had been given the full list, while the general public had not.

In New Jersey, there are currently only three facilities on the list. Two of these are listed under the category, "Improving," while the other, sadly, is now a veteran of the listing, in the list of "Facilities That Have Not Improved."

It will interesting to see if inclusion on this list will provide extra incentive for these troubled homes to improve the quality of care - and thus reduce the unacceptable quantity of nursing home injuries and abuse.

Forced Overtime Shifts for Nurses Facing Ban in PA

dcohen@stark-stark.com (David Cohen) — Tue, 26 Feb 2008 08:09:11 -0500

I read an interesting article this week in the Philadelphia Inquirer that truly encapsulates much of what we've been trying to say on this blog since its inception. The management and owners of nursing homes, must treat their front-line worker with dignity, respect and compassion. Otherwise, patients in nursing home get injured and sometimes die.

New Jersey has passed good legislation to protect nurses...and in turn, patients. Pennsylvania should follow this lead.