Protecting Your Rights

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.

Continue Reading Special Considerations for Latinos Seeking Elder Care

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.

Continue Reading Rights of Whistleblowers: MDS Coordinators

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. Continue Reading Nursing Home Residents Deprived of Right to Sue for Abuse and Neglect

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.

Continue Reading New Jersey’s Safe Care Cam Program Expanded to Nursing Homes

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.

Continue Reading New Jersey’s Safe Care Cam Program Expanded to Nursing Homes

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.

Continue Reading Big Business after Consumers Once Again

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.

Continue Reading Several Philly Area Non-Profit Nursing Homes Sold to For-Profit Companies

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.

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.

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.