October 31, 2014

Nursing Home Arbitration Agreements Deemed Invalid

by Levin & Perconti

An arbitration agreement is an incredibly common provision contained in all kinds of contracts related to business, employment, and so much more. States across the continent honor arbitration agreements in some way. Such agreements manifest a compact between parties to a contract that if there is a dispute relating to the terms of the contract in any way, and one party seeks to litigate the matter with the other or others, that case will be arbitrated rather than brought in court. Litigation in general can be an incredibly time-consuming event and even more so can be extremely costly.

While arbitration itself incurs costs, it will typically be less expensive than an actual court trial. Arbitration is a type of alternative dispute resolution, which can also include negotiation, mediation, and others. It involves evidence and testimony as to the incident that occurred such as physical abuse, verbal abuse, sexual abuse, or other neglect similar to a trial, but carries its own distinct procedural rules and tends to be more streamlined in avoiding the often stalled calendar of a courthouse. The decision of an arbitrator or an arbitration panel is typically binding on the parties. There has been precedent for courts to invalidate the arbitration agreement provision of a contract, namely where it is against public policy or deemed unconscionable (or in essence, both).

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October 29, 2014

A More Local Case Study of Elder Abuse and Neglect

by Levin & Perconti

In a fairly recent post, we explored a report released from the United States Department of Health and Human Services Office of the Inspector General (HHS-OIG). That OIG report examined the rate of reporting, including the quality of the reporting, of abuse and neglect at nursing homes by those nursing homes themselves. The report showed how only 53% of allegations and findings from investigations into allegations were properly reported.

Furthermore, the majority, but certainly not an acceptable number, of nursing homes followed federal guidelines prescribed for those receiving money through Medicare, Medicaid and other federal programs. The report effectively demonstrated how there is serious underreporting of abuse and neglect across the United States, and how in so many cases (one-fifth!) abuse was reported, but the origins of that abuse were reported as unknown or uncertain, making it more difficult to ferret out the perpetrators and wrongdoers.

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October 27, 2014

Criminal Charges Pending Against Multiple Nursing Home Staffers

by Levin & Perconti

Federal and state authorities, through health departments, departments of aging, the Centers for Medicare and Medicaid Services, and other relevant agencies are all responsible for enforcing the laws, rules and regulations that govern nursing homes and long-term care facilities. Yet sometimes in the hustle and bustle of investigations, inspections, lengthy reports, sanctions, fines, suspensions, closures, and anything else around and in between, we tend to overlook the more seemingly simple actions that can be taken: criminal.

The abuse, neglect and exploitation of the elderly and any other patients at nursing homes and facilities can often rise to a criminal level, warranting the attention of police and prosecutors. Unfortunate incidents at the Edmonson Center in South Central Kentucky are more recent examples. Edmonson is owned by the company Genesis Healthcare. Three former employees of the nursing home have been criminally charged based on allegations that they physically and mentally abused two women, and furthermore neglected them.

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October 23, 2014

The Debate over Hidden Cameras in Nursing Homes Continues

by Levin & Perconti

There has been a growing debate over the use of hidden cameras in nursing homes and long-term care facilities. We have previously written about the movement of certain states to enable nursing homes, long-term care facilities, and other healthcare provider facilities to use hidden cameras in nursing home rooms and around the buildings. It has not been so much a call for mandatory use as it has been a call for at least permissive use of cameras. The negative that some have pointed out is the inherent invasion of privacy of residents and others.

Yet many would counter that where the use of hidden cameras is permissive, it would be up to the resident and/or their families as to whether they would like to make use of a camera to record what goes on. Another advantage of using cameras would be that where nursing home nurses, aides and staff are aware that there could be a camera in any room or at the turn of any corner, this could act as more of a deterrent to poor behavior, forcing staffers to think twice about their behavior. And of course, where there is abuse or neglect, those cameras will help catch it and hopefully turn it into a complaint and an investigation so that the appropriate parties are punished and that it never happens again. New York is one of the states that have made use of hidden camera footage to catch wrongdoing by staffers and bring both civil action and criminal charges against appropriate parties. While still somewhat rare, the use of camera footage could increase as more successful prosecutions and claims are brought against nursing homes, staffers, administrators and owners.

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October 20, 2014

Latest Testimony in GTCR Bankruptcy Trial

by Levin & Perconti

The major bankruptcy-related trial of the corporate owner of a troubled line of nursing homes continues in Florida bankruptcy court, and has provided more testimony and news. As a quick refresher, an investment firm previously ran by Bruce Rauner, who also happens to be a gubernatorial candidate challenging Governor Pat Quinn for the highest office in the state of Illinois, has been accused of selling off a nursing home company it owned to an elderly man who would not possibly have had a clue that the company, called Trans Healthcare, was in dire straits financially and faced judgments of close to $1 billion.

The investment firm, called GTCR, is a Chicago-based private equity firm that according to its website manages over $8 billion in capital investments. GTCR has been accused of selling the entity to a shell corporation owned by the elderly man, under fraudulent circumstances in order to avoid the judgments it faced, which stemmed from lawsuits arising out of allegations of abuse and neglect against the various nursing homes owned by the nursing home company. Shell companies are often legal entities, like LLCs, created for the transfer of assets or ownership as well as liability, and have often played a role in fraudulent dealings meant to avoid liabilities and the like. Such fraudulence is illegal and punishable in civil and criminal courts. In this case, the allegations entail not just the simple sale, but a rather complex intricate series of transactions meant to help mask the perceived fraudulence of a sale to a man that GTCR allegedly did not even know.

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October 17, 2014

Question of Immunity for Nursing Home Likely Headed to Appeals Court

by Levin & Perconti

In a recent post we highlighted a fascinating case that is set to go to the Connecticut Supreme Court regarding a private nursing home that has been providing services to parolees under a contract with the state, which is actually mandated through a state law. That nursing home has asserted that it benefits from sovereign immunity as a contractor to the state, even though it is still a private facility and holds all of its own assets as a private entity. In the category of immunity, a different but nevertheless interesting case has come out of the state of Arkansas. This particular case addresses a state law that provides certain exemptions for charities, and which a nursing home is invoking to avoid liability to a family suing for a family member’s death at the facility.

Understanding Immunity

In Arkansas, the law provides for what is called charitable immunity protection under the Arkansas Nonprofit Corporation Act of 1993 and subsequent court cases interpreting the scope and bounds of the immunity provision. A charitable immunity protection essentially provides immunity to charities, which can by definition include certain nursing homes, from lawsuits specifically for torts committed by the organization or institution’s employees or agents. The bottom line is that these organizations simply cannot be sued.

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October 15, 2014

Even Seniors Face Crippling Student Debt

by Levin & Perconti

While not an absolute rule, seniors or the elderly tend to be the predominant residents of nursing homes and long-term care facilities. Naturally, with age this part of the population is more likely to encounter situations of illness or physical or mental disability. A major challenge for seniors and their families is not only finding the right nursing home that is suitable for the patient resident’s needs, but also the task of finding one that is affordable.

Nursing homes can cost a fortune, and by that alone they should be expected to provide the absolute best quality of care to their residents. It is also important to find a home that one can afford, typically through private insurance or public plans like Medicare or Medicaid. This is not always so easy, though, and seniors are often left out in the cold or struggling just to pay the care bills. An added burden occurs where seniors already have existing debt for other things, which can drain their finances and make it tougher to find the right care.

The Student Loan Problem

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October 13, 2014

Gov. Candidate Rauner Alleged Invovled in Shady Dealings by Nursing Home Owners to Avoid Liability

by Levin & Perconti

We have written time again about the traditional civil and criminal cases that can be brought against nursing homes and/or their administrators, managers, nurses, nursing aides and any other staff. Civil claims can be brought for negligence of or abuse against residents and the consequent damages, which can include mental anguish, physical injury, and sometimes even death. There can also be financial exploitation whereby a staffer steals money or jewelry from residents. In so many instances staffers take advantage of the diminished mental states of patients.

In addition to civil claims for damages, staffers can be charged in certain instances. Nursing homes can also be subject to civil penalties under the False Claims Act where they abuse access to federal funds by overcharging or falsely charging for Medicare and Medicaid reimbursements. Recently, however, a nursing home sits at the center of a federal bankruptcy trial which we have previously written about. There has been more testimony of late making the media wires.

The Bruce Rauner Situation

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October 10, 2014

State Nursing Home Tries to Claim Sovereign Immunity to Avoid Liability

by Levin & Perconti

Another significant nursing home litigation case has gone up to a state Supreme Court, this time in Connecticut. And this time, there are somewhat novel and complicated legal issues of sovereign immunity. Interestingly, this case surrounds a private nursing home providing care to mental patients and state parolees. The nursing home facility is owned by iCare Management LLC as well as two subsidiaries called SecureCare Realty LLC and SecureCare Options LLC. These owners argue that they have what is called sovereign immunity which exempts them from zoning restrictions as well as property taxes.

The concept of sovereign immunity goes way back in the history of our modern laws. It is a legal theory and practice in which the state itself is immune from prosecution or lawsuits in criminal and civil courts. It is a concept that goes back as far as the old monarchies of Europe where a king or queen would basically exempt the crown from being subject to the jurisdiction and decisions of the courts. Today, states governments can assert sovereign immunity under the Eleventh Amendment of the U.S. Constitution, meaning specifically that states generally cannot be sued in federal courts without the states’ own respective consent to being a defendant (and thus leaving it up to a state’s laws and its own courts to deal with such matters). The federal government furthermore can only itself be sued in certain circumstances such as under the Federal Tort Claims Act. Otherwise, without any consent by statute or otherwise, the federal government cannot be sued.

The Latest Case

In this particular case, as reported by the Hartford Courant, the nursing home in question has sought to operate in a particular area without paying taxes or obeying local zoning rules. Some of those rules are particularly serious, as the nursing home has tried to operate in a neighborhood with single-family homes and apartments in spite of the fact that several individual employees of the nursing home are listed on the state’s sex offender registry for the commission of sex crimes. In this instant the zoning rules are meant to protect families and children from being close to sex offenders. The case was filed by the local town against the nursing home to prevent it from operating in this neighborhood, and although dismissed originally, has been resurrected on appeal.

The nursing home originally came into operation under state law. By rule long-term care provided by fully state-run facilities cannot receive reimbursements through the federal Medicaid program for the care of parolees and mental patients. Thus the commissioners of the corrections department, social services, and the mental health and addiction services arranged to farm out the work through a services contract to a private entity – in this case the above-mentioned companies that own the facility in question.

Through such an arrangement Connecticut could get back 50% of the costs of the facility through Medicaid, which obviously is more than nothing. Based on this arrangement, the private facility has argued that due to its partnership with the state under state law to manage the nursing home intended for the public benefit, it should enjoy the benefit of immunity from zoning laws that the state itself would. However, on the other side of this is the argument that the nursing home’s assets are privately owned and thus not truly state property, meaning that it would not meet the requirements to legitimately claim sovereign immunity. This is a fascinating question for those interested in legal precedent, and moreover has significant implications for the future of private-public arrangements when it comes to nursing homes or long-term care facilities.

See Other Blog Posts:

Movement to Reduce Use of Antipsychotic Medications Slow to Take Hold

An Overview of the Regulation and Monitoring of Illinois Nursing Homes

October 8, 2014

Nursing Home and Staff Face Civil and Criminal Charges

by Levin & Perconti

Coming from Long Island, New York is a sad story about a lawsuit filed after the death of a patient resident at a nursing home in a town called Medford. A female elderly resident at the Medford Multicare Center for Living passed away in October 2012 from a heart attack. As a news report recounts, the patient was originally admitted to the facility as a rehabilitation patient in what is called the ‘ventilator unit.’

It is reported based on the lawsuit that the resident was not connected to a ventilator one night in spite of the fact her doctor ordered the use of the ventilator overnight. Without the ventilator, the patient allegedly exhibited “a faint pulse and low blood-oxygen level,” and nursing staff at the facility are accused of ignoring both “audible and visual warnings” related to the patient’s dangerous pulse and oxygen level. The family of the patient filed suit against the facility alleging these circumstances and that for “nearly two hours” the staff negligently ignored the patient, and that as a result she died from a heart attack. The lawsuit names the seven staffers on duty the night the patient died, plus the nursing home’s administrator and respiratory therapy director, and cites information from an investigation by the state Attorney General’s office.

Record of Poor Care

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October 6, 2014

The Worst Places in the Nation for Nursing Homes?

by Levin & Perconti

As we have written about before, states and the federal government have over time increased the quality and quantity of data kept on nursing homes across the country in an effort to quantify and qualify the quality of care and incidents of abuse and neglect that occur. Through this data and information the government, through appropriate agencies like federal and state health departments or departments of aging and the Centers for Medicare and Medicaid, among others, can know which facilities to increase the frequency of investigations for violations of the law and regulations, and can furthermore publish such information to inform the public so that people in search of a nursing home for themselves or for a loved one has as much information as possible at hand. In addition to the government, advocacy groups that specialize in the promotion of safe and quality nursing homes and long-term care facilities seek out data on abuse and neglect incidents as well as reports on quality of care to also aid the public’s awareness and knowledge about nursing homes’ respective records. These groups add another vital group of watchdogs to such an important issue.

State Data

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October 3, 2014

Baby Boomers Face Housing Issues

by Levin & Perconti

We all know how the Baby Boomer generation, born in the years following World War II, earned that nickname for the very reason that there are so many of them. The Baby Boomer generation is largely attributed as a source of the stress exerted on federal and state programs like social security, Medicare and Medicaid, among many others. As the “Boomers” reach their retirement age, many will over time require a certain level of care even in their pre-elderly years. A significant issue for any retiree, now that they will no longer work full time, and perhaps because the kids are grown and out of the house, is finding a home suitable for the retirement years. A major concern is that the country will not be able to handle this new group and its demands for affordable housing in suitable locations and near the necessary services for those getting into their twilight years.

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