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Throughout the country, trusting families are signing nursing home, rehab, and assisted living admission paperwork for someone they care deeply about. These documents are technical, long, and complicated. Hidden in many of these agreements is language that significantly curtails a family’s ability to hold a facility accountable if something terrible happens – including rape, assault, neglect, and death. This language is called “pre-dispute” or “forced” arbitration language.

Pre-dispute forced arbitration is where a person agrees to give up their right to sue in court if an injury or death happens. To be clear, your loved one’s admission to the facility cannot be denied if you don’t agree to arbitration and you get absolutely, 100%, nothing in exchange for agreeing to pre-dispute arbitration.

Continue Reading Forced Pre-Dispute Arbitration Gets Federal Attention

Often, many of the problems that occur in nursing homes are a direct result of terribly insufficient staffing. This knowledge is born out in studies that show a direct correlation between staffing ratios and quality of care.

Despite all of this clear evidence, many facilities only meet the bare minimum hours required under state regulation. Some aides have told me the ratio on their day shift at a nursing home was as high as 1 aide to 14 residents. For those unaware, aides are the people who feed, bathe, and transfer residents, and they are also responsible turning and repositioning any residents who are at risk for developing bed sores. Having only 1 person in charge of caring for 14 patients at the same time is a catastrophe waiting to happen.

Continue Reading New Jersey Looks to Improve Staffing Ratios

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.

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.

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.

Continue Reading The Lurking Dangers of Blood Thinners in Nursing Homes

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.

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.

Eric Dakhari, Esq., member of the firm’s Nursing Home Litigation Group, was featured on WIMG and WPHY’s Trenton Talks – In the Public Interest, which was hosted by Shareholder David Cohen, Esq.

The program discussed at length the rights and role of healthcare whistleblowers, the role of the nursing home MDS Coordinator, and the role of the lawyers in whistleblower cases. Check out the clips below:

Eric Dakhari, Esq. explains the rights of healthcare whistleblowers and why they should be wary of non-disparagement clauses.

Eric Dakhari, Esq. explains the role of healthcare whistleblowers and the duty of care responsibility.

Eric Dakhari, Esq. talks Abraham Lincoln, the False Claims Act, and the role of lawyers in healthcare whistleblower cases.

Eric Dakhari, Esq. explains the role of the nursing home MDS Coordinator in financial fraud.

Stark & Stark Shareholder, David R. Cohen, Esq. spoke on the topic “Advocacy Track: Social Media and Technology” at the 2014 American Association for Justice Annual Convention in Baltimore, Maryland. Mr. Cohen is a member of Stark & Stark’s Accident & Personal Injury Group and Chair of the firm’s Nursing Home Litigation Group. Mr. Cohen concentrates his practice in nursing home negligence and abuse claims, elder abuse and assisted living facility litigation. If you would like to see a photo of this event, click here.

 

Even though lawsuits and litigation comprise only a small portion of the cost of health care – less than 1 percent – attorneys constantly get blamed for the rise in medical expenses.

You can read the statistics, which come from a study done by John Hopkins University School of Medicine and reported in the UPI, here.

A real driver of health care costs is fraud.  A recent L.A. Times article chronicles that the Ensign Group Inc., which operates nursing homes along the West Coast, just settled with the government to reimburse $48 million due to fraudulently inflated Medicare bills.  The facilities were billing for unnecessary work, or work that was never done – mostly in the areas of physical, occupational, and speech therapy. The company would have gotten away with it of not for an employee that spoke up and brought the truth to light.

You can read the full article here.