Protecting Your Rights

Earlier this month, the U.S. Senate Committee on Finance held a hearing to discuss reports of abuse and neglect in some nursing homes across the country. The Committee also discussed how to protect these patients from abuse.

This hearing was held only weeks after a health care facility in Arizona discovered that one of their patients, a 29-year-old women in a vegetative state, had been raped. The pregnancy was discovered when the woman went into labor. In January, a 36-year-old nurse was arrested on suspicion of sexually assaulting and impregnating the woman.


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As a result of the unstable economy, many adults have been forced to work longer hours or multiple jobs, resulting in less time to care for their elderly parents at home. This is no exception for America’s growing Latino population, who often hold caring for elderly family members in high regard as a cultural tradition.

Government statistics show that Hispanics have a life expectancy of 82 years, longer than non-Hispanic white Americans (78.7 years) and non-Hispanic black Americans (75.1 years). Hispanic women have a life expectancy of 84.3 years. However, according to a poll conducted by Associated Press-NORC Center for Public Affairs Research, fewer than two out of every 10 Hispanics age 40 and older say they are extremely confident that nursing homes and assisted living facilities can meet their needs.


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How does the role of an MDS Coordinator relate to patient care and Medicare or Medicaid fraud?

A nursing home MDS Coordinator assesses the capabilities of a patient and creates individual care plans—including the level of treatment that must be delivered. A person in this position may be doing their job right but then fall under the pressure from the nursing home to up the ante for more billings or risk losing a well-paying job. It starts out with a fudged physical therapy session here or there. Then the message flows downhill to CNAs and other healthcare staff resulting in more falsified records. This escalates with more and more demands from above to get additional services—and higher value services—added to the bills. In the end, the Government is defrauded.


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The current administration has set its sights on another federal rule, seeking to eliminate the ban on pre-dispute arbitration agreements for nursing home residents. Pre-dispute arbitration agreements require elderly adults and individuals with disabilities, as well as their families, to waive their right to file a lawsuit in the courts – before admission to a nursing home. As a condition to entering the nursing home, the prospective resident and his or her representative would be required to submit any dispute, including claims of egregious abuse or neglect, to mandatory arbitration proceedings.

The Current Rule

As the rule currently stands, a nursing home resident cannot be required to waive his or her right to access to the court system. This rule preserves the right of vulnerable nursing home residents to sue for injuries caused by nursing home negligence, abuse, and neglect, including pressure sore infections, suffocation caused by restraints, choking, dehydration-related conditions, gangrene, and even sexual assault.
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To increase protection of its elderly and disabled citizens from abuse and neglect, the state of New Jersey is expanding its Safe Care Cam program to nursing homes, residences for the developmentally disabled, and other institutional care facilities. The Safe Care Cam program loans free surveillance cameras to New Jersey residents to monitor the treatment provided by caregivers. The cameras are provided for free 30-day loans to families who suspect or question whether a care provider is abusing or neglecting their loved one.
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To increase protection of its elderly and disabled citizens from abuse and neglect, the state of New Jersey is expanding its Safe Care Cam program to nursing homes, residences for the developmentally disabled, and other institutional care facilities. The Safe Care Cam program loans free surveillance cameras to New Jersey residents to monitor the treatment provided by caregivers. The cameras are provided for free 30-day loans to families who suspect or question whether a care provider is abusing or neglecting their loved one.

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In 2011, the insurance, pharmaceutical, and nursing home industries worked together with an extraordinary budget to try to deceive American consumers into giving up their constitutional rights through a bill known then as HR-5. This bill would have severely harmed the rights of consumers across the country who were catastrophically injured or killed by any of those industries. The purpose of HR-5 was to allow physicians, hospitals, nursing homes, pharmaceutical companies, and insurance companies to increase their ever-burgeoning profit levels. With proponents of the bill outspending lobbying efforts of consumer rights organizations by a ratio of 10 to 1, the bill nonetheless failed when the truth came out.

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I was recently speaking with someone about a woman who worked for a non-profit nursing home for many years. She liked it there and the facility provided good care. Then the facility was sold to a for-profit corporation. Overnight, staff hours were cut, pay was cut, and care declined. The person I was speaking with could not believe this could happen–I was not surprised as sadly I’ve seen this occur many times.

If an administrator at a non-profit tells her board of directors she made a little money that year and gave great care, she’s applauded. However, if that same administrator tells the same thing to a for-profit board, she’s getting fired. The replacement knows that staffing is the biggest expense and that’s where you will see the cuts.


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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

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,