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.”

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.

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.

In New Jersey, Assisted Living encompasses providing various coordinated supportive personal and health services, available 24 hours per day, to residents who need those services. Its purpose is to promote resident self-direction and participation in decisions, with an emphasis on independence, individuality, privacy, dignity, and homelike surroundings.

And thus, corporations that operate Assisted Living Facilities (ALF) must provide, at a minimum, services for:

  • Nursing
  • Recreation
  • Medical Transportation
  • Personal Care
  • Social Work
  • Activities
  • Housekeeping
  • Dining
  • Pharmacy

Indeed, ALFs and our nursing-home lawyers know that potential residents have the right to live in an ALF that does not admit more residents than it can safely accommodate while providing those services and other care. And for persons who currently live in an ALF, the corporations operating the ALFs know that those residents have the right to receive care and services at a level that addresses the residents’ changing physical and psychosocial status.

Continue Reading Assisted Living Facilities Must Not Expose Residents to Unnecessary Risks of Harm

Our nursing-home lawyers frequently explain that in 1976, the New Jersey Legislature expressed a broad policy and goal for protecting nursing-home resident rights. And in doing so, it empowered the Commissioner of the New Jersey Department of Health with setting the path and rules that nursing home corporations must follow to ensure that they do not violate their residents’ rights.

Nursing Home Mandatory Resident Rights

In fact, New Jersey nursing-home law holds nursing home corporations responsible for developing and implementing policies to protect, preserve, and guarantee nursing-home resident rights. Our nursing-home lawyers understand that those rights, as provided by New Jersey nursing-home law, include the following Mandatory Resident Rights:

  • To live in a nursing home that does not admit more residents than it can safely accommodate while providing adequate nursing care, N.J.A.C. 8:39-4.1(a)(11);
  • To live in a nursing home that does not subject the resident to neglect, N.J.A.C. 8:39-4.1(a)(5);
  • To live in a nursing home that does not subject the resident to physical and mental abuse; N.J.A.C. 8:39-4.1(a)(5); and
  • To live in a nursing home where the nursing staff protects the resident’s dignity and individuality by treating the resident with courtesy, consideration, and respect, N.J.A.C. 8:39-4.1(a)(12).

Furthermore, New Jersey’s nursing-home law requires nursing homes to inform and explain the mandatory resident rights, and many other rights, to a nursing-home resident, the resident’s next of kin, and the resident’s guardian, N.J.A.C. 8:39-4.1(b).

Nursing Home Rights Include Following the Standard of Care

Empowered by the New Jersey Legislature, the Commissioner has created the Mandatory Resident Rights, above, as well as rules and standards intended to assure that nursing-home corporations deliver high quality care to the residents who live in their long-term care facilities. The rights, rules, and standards address access to care, continuity of care, comprehensiveness of care, coordination of services, humaneness of treatment, conservatism in intervention, safety of the environment, and professionalism of caregivers.

Voicing Complaints About Nursing Homes

Importantly, nursing-home residents also have the right to voice their complaints without being threatened or punished. A nursing-home corporation must provide residents and their families with the names, addresses, and telephone numbers for the government agencies that will accept and document any nursing-home complaints of abuse and neglect. Here are two nursing-home government agencies that families may contact

  • New Jersey Department of Health, Health Facilities Evaluation & Licensing, P.O. Box 358, Trenton, NJ 08625-0358; and
  • Office of the Ombudsman for the Institutionalized Elderly, P.O. Box 852, Trenton, NJ 08625-0852.

Residents and families may file a complaint by calling the hotline at 1 (800) 792-9770, Select #1; but anyone may use the hotline, even nursing-home corporation employees and other members of the public. Or they may file a complaint online here: online complaint. Finally, anyone can submit a complaint by downloading and completing form AAS-60, located here: [.pdf] or [.doc]; and then faxing the form to (609) 943-4977 or (609) 633-9060.

The State of New Jersey created the Mandatory Resident Rights, rules, and standards in order to protect nursing-home home residents from neglect and abuse. When nursing-home corporations refuse to follow the rules and the standards of care, which protect and preserve those rights, our nursing-home lawyers litigate cases against them on behalf of caring families whose loved ones have suffered catastrophic harm and loss.

Pressure ulcers, which people sometimes call bedsores, develop when a person spends too much time in the same position while lying in bed or sitting in a chair. During that prolonged time, the person’s body weight and bones create pressure by pressing the skin and soft tissue against the—harder—bed or chair surface. The pressure reduces blood supply to that area, and damages or destroys the skin tissue.

Without immediate intervention, pressure ulcers will develop, and then progress through the soft tissue located between the bone and the skin. In the most advanced stage, a pressure ulcer, which is an open wound, exposes muscle and bone, which can lead to osteomyelitis (a bone infection).

Nursing homes can prevent pressure ulcers and bedsores from developing.

In our Nursing Home Litigation Practice, our nursing home lawyers have long since understood that nursing home staff can detect the early changes occurring in a patient’s health status that indicate that the patient’s skin is about break down and develop a pressure ulcer—if they fail to immediately implement well-recognized and accepted interventions for avoiding pressure ulcers.

Tn order prevent a pressure ulcer from developing, the nursing home staff must routinely perform the process of inspecting the patient’s body from head to toe—every day. Nursing homes typically call that process the Daily Skin Assessment or, when pressure ulcers already exist, the Wound Care Assessment. This is the standard of care that nurses in the community, and nursing experts across the nation, recognize and accept when our nursing home lawyers litigate nursing home negligence cases involving pressure ulcers or bedsores. By merely inspecting the patient’s body, nursing home staff will detect the occurrence of the following early signs that indicate that a pressure ulcer will develop: skin redness (nonblancable), warm areas, spongy or hard skin, and breakdown in the skin’s top layers.

If the nursing home management adheres to the recognized and accepted standard of care for detecting those early signs, it can easily ensure that its nursing staff immediately implement the necessary interventions to prevent a pressure ulcer or bedsore from developing; and more importantly, spare the patient the unnecessary and avoidable pain, complications, and prolonged healing process that accompany a pressure ulcer or bedsore.

When the nursing home management fails to follow the recognized and accepted standard of care for detecting the early signs of a developing pressure ulcer or bedsore, it has committed nursing or nursing home negligence by failing to ensure that its staff is able to provide the necessary interventions.

That nursing home negligence will often cause the avoidable and unnecessary occurrence of a pressure ulcer or bedsore. And when left undetected and untreated, the pressure ulcer or bedsore progresses into a serious health problem for the patient. That is so, because when a patient has a break in the skin, the patient will have all of the issues associated with healing broken skin, plus the problems of caring for an open wound, including preventing life-threatening infections.

Our nursing home lawyers litigate nursing home negligence cases for caring families whose loved ones have developed pressure ulcers or bedsores, only against nursing homes that refuse to employ enough trained nursing staff on the recognized and accepted standard of care for preventing pressure ulcers or bedsores.

The official U.S. government website for Medicare provides a tool that allows consumers to compare information about nursing homes. It is called Nursing Home Compare, and contains quality-of-care information on every Medicare- and Medicaid-certified nursing home in New Jersey and Pennsylvania.

The tool creates that information based on the “skilled” care that nursing homes provide, which is care given when you need skilled nursing or rehabilitation staff to manage, observe, or evaluate your health status. For example, skilled care includes intravenous injections and physical therapy.

The “Overall 5-Star” Rating System

To rate the nursing homes, the tool uses an “Overall 5-Star” rating system. It assigns 1 to 5 stars, with more stars indicating better quality, across three “domains.” Those domains include: (1) Health Inspections, (2) Quality Measures, and (3) Staffing. The tool reports the ratings in table or profile form. Here is example of a nursing-home profile:

The Domains

The tool generates the rating for the  Health Inspection Domain based health-inspection ratings from the three most recent annual-comprehensive inspections, and inspections instigated in response to complaints in the last three years. It places more emphasis on recent inspections.

It generates the rating for Quality Measures Domain by combining the values on 9 out of 19 Quality Measures. Some of those measures include, for example:

  • the percentage of long-stay high-risk residents with pressure ulcers;
  • the percentage of long-stay residents experiencing a fall with major injury; and
  • the percentage of long-stay residents who self-report moderate to severe pain.

The tool derives those values from clinical data that nursing homes regularly report on a form called the Minimum Data Set.

And finally, the tool generates the rating for the Staffing Domain based on (1) the Registered Nurse (RN) hours per resident day, and (2) the “total staffing” hours per resident day. Total staffing includes: RNs, Licensed Practical Nurses, Licensed Vocational Nurses, and Certified Nurse Assistants. Nursing homes report staffing hours, which are from a two-week period just before the state agency conducts an inspection, to the New Jersey or Pennsylvania state-inspection agency. The agencies, in turn, report those data on Nursing Home Compare.

At Stark & Stark, our nursing-home negligence lawyers dedicate their entire practice to prosecuting nursing-home negligence lawsuits. We highly recommend the Nursing Home Compare tool when trying to assess a nursing home’s quality.

Nursing homes, in New Jersey and Pennsylvania, must maintain enough nursing staff to provide nursing care, and related services, to their residents to maintain the residents’ physical, mental, and social well-being.

In facilities across New Jersey and Pennsylvania, front-line workers make-up the primary healthcare personnel responsible for delivering that care and service to the resident. Those workers include, at a minimum, certified nursing assistants (CNA) and licensed practical nurses (LPN): They are, undoubtedly, the most important resource that a nursing-home facility can provide to ensure that elderly residents receive quality care.

But recently, more than fifty front-line workers picketed outside the Castle Hill nursing home in Union City and the Harborview nursing-home in Jersey City, because, among other things, they are upset that those facilities have failed to provide enough personnel to deliver quality care to the residents: In other words, the workers believe that those facilities—which are owned and operated by Alaris Health—have been operating in a way that endangers the residents’ well-being.

Facilities, in New Jersey and Pennsylvania, that fail to provide enough nursing personnel for delivering quality care, knowingly place residents at risk for neglect and abuse. For example, understaffing can impair a facility’s ability to deliver critical and labor intensive nursing care such as frequent and regular turning and repositioning residents to prevent debilitating pressure ulcers from developing.

And indeed, recently, a front-line worker of the Castle Hill nursing-home in Jersey City stated that “caring for 13 people at one time is just too much.” Furthermore, the Castle Hill and Union City nursing-homes front-line workers believe that Alaris Health is waging “an aggressive campaign against workers” during a time when “the current staffing levels are below state and national average.

No one ever expects a family member or friend to endure neglect or abuse in a nursing home. However, despite federal and state regulations, nursing-home residents often suffer the negative effects stemming from nursing-home facilities that violate those regulations.

When someone you care about has endured nursing-home negligence or abuse, the problems can seem overwhelming. Stark & Stark’s Nursing Home Litigation Group will advise you of your loved one’s legal rights, and will aggressively prosecute a claim whenever our investigation reveals any instances of negligence or abuse.

When families are considering whether to use nursing-home services to care for their loved ones, they must consider various issues in determining whether a nursing home is capable of providing adequate care. Among other issues, a family must determine how well a nursing home staffs its operations.

For example, roughly 450 nursing-home care workers recently announced their intentions to go on strike to address the unfair labor practices occurring across four different facilities owned by the same company. But even before the workers commence their strike, the elderly residents within those facilities, and their families, have already endured the catastrophic effects stemming from underpaid staff, and the accompanying understaffed environment.

Understaffing, often, prevents facilities from delivering appropriate care to residents, and thus leads to neglect and abuse. 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. At the same time, a facility must maintain adequate staffing to assist residents with eating, and to encourage their independence in feeding themselves. Without adequate staffing, facilities threaten residents with malnutrition and dehydration.

Furthermore, an underpaid staff may cause low morale, which will likely affect the quality care rendered to the residents, particularly for critical and labor intensive care such as frequent and regular turning and repositioning—often at least every two hours—of residents at risk of developing debilitating pressure ulcers. 

The dangers of understaffing in nursing homes is clear, and government regulators have attempted to reduce the negative effects by requiring all Medicare-participating nursing homes to meet the requirements specified in the Federal Nursing Home Reform Act. That legislation requires nursing homes to have enough staff to provide all necessary care to all patients on a 24-hour basis.

No one ever expects a family member or friend to be the victim of neglect or abuse in a nursing home. However, despite government regulations, residents of nursing homes often suffer the negative effects of underperforming facilities.

When someone you care about has been the victim of nursing-home negligence or abuse, the problems can seem overwhelming. Stark & Stark’s Nursing Home Litigation Group will advise you of your loved one’s legal rights, and will aggressively prosecute a claim whenever our investigation reveals any instances of negligence or abuse.

The second edition of the State Long-Term services and Supports (LTSS) Scorecard (2014), sponsored, in part, by the AARP, assigned New Jersey a 26th, and Pennsylvania a 42nd, overall ranking based on performance across twenty-six indicators, grouped into five dimensions, which include (1) affordability and access, (2) choice of setting and provider, (3) quality of life and quality of care, (4) support for family caregivers, and (5) effective transitions.

LTSS help persons-in-need perform activities of daily living that would be difficult or impossible for them to perform on their own. Services and supports are delivered in a variety of settings, but nearly everyone prefers to remain at home. When families must rely on nursing homes to provide those services and supports, family caregivers often attempt to provide oversight to ensure that care rendered by the nursing home or assisted-living facility is appropriate.

A Closer Look at the Effective Transitions Dimension

The Scorecard ranked New Jersey at 36 and Pennsylvania at 28 in the effective-transitions dimension, which shows that states that rely heavily on nursing homes for LTSS also demonstrate less effective transitions across care settings. That means that individuals with complex needs are more likely to experience inappropriate and costly hospitalizations and inadequate support in moving from a nursing home back into the community. This dimension aligns well with the quality of life and quality of care dimension.

The Scorecard explains that “unnecessary transitions among settings are disruptive, especially to people with dementia, and can increase the risk of medical errors. Moreover, when they occur at the end of life, they can indicate poor management of care or overly aggressive treatment.”

Notably, high ranking states tend to minimize disruptive transitions and focus more on helping nursing-home residents return to their homes and communities. Accordingly, states must actively facilitate those transitions. That is: provide adequate support  for movement from nursing homes back to the home- and community-based settings that most people prefer.

If you or a loved one has any questions regarding nursing home neglect, contact Stark & Stark today.