Articles Posted in Knowing your rights

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If elder abuse and neglect strikes you or someone you love, it is important to ensure there is full, legal accountability. But how is that done? The accountability can take different forms, both under the civil law and criminal law.

If the misconduct is intentional or particularly abhorrent, then criminal charges may be filed against those involved. Prosecutors make the determination as to whether the situation involves the breaking of a law in the state criminal code. Potential penalties in these cases may include jail time, probation, fines, or various other punishments.

Alternatively, those individuals directly harmed by the mistreatment (or their families) decide to pursue accountability under the civil law. In civil lawsuits alleging elder neglect, the potential outcome is usually not a “punishment” for the wrongdoer but instead compensation to help the one harmed.

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The outcome of many civil lawsuits, including those related to nursing home abuse and neglect, hinge on procedural rules. These rules refer to the mechanics of how the justice system works. They are the nitty gritty detail about what paperwork has to be filed, timing requirements, threshold requirements before having a day in court, the process for collecting information from the opposing side, and more. This should be distinguished from the substantive rules regarding liability which refer to the specific items that must be proven to win a case.

Many community members are unfamiliar with procedural rules and may underestimate how important they are to one receiving compensation and accountability following preventable injury. Perhaps for that very reason, chronic defendants like big corporations are trying to change rules to offer more advantages for the company at the expense of the injured plaintiff. This fight is similar to that of forced arbitration: it is taking place at the federal level and many are completely unaware of the encroachment.

Possible Federal Civil Procedure Rule Changes

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We frequently rail against forced arbitration clauses used in nursing home admission contracts which limit the rights of residents and their family to seek recourse following neglect and mistreatment. All Illinois families are urged to avoid these “agreements” at all costs.

But what is truly unfair about arbitration agreements? It is helpful to run down a list of a few of the aspects to the process that slant against the consumer.

Juries & Evidence

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The federal Nursing Home Reform Act covers many of the rights that nursing home residents are guaranteed. These rights are codified in the Code of Federal Regulations Title 42- Public Health Law, Part 483.

These rights include:

The right to choose a doctor The right to receive advance information about treatment The right to be free from all kinds of nursing home abuse The right to obtain clinical records upon request The right to have notice before a room or roommate change happens The right of residents to manage their personal finances.

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A news release issued by the National Community Pharmacy Association notes that a new law has been proposed which would aid Medicare beneficiaries to get diabetic testing supplies that are residents of assisted living facilities and who are homebound. The Diabetic Testing Supply Access Act (H.R. 2845), allows community pharmacies to provide same-day delivery services of diabetes testing supplies to residents of assisted living facilities or those who receive long-term care.

The new law was put forward in response to a ban on diabetic testing supply deliveries by community pharmacies which went into effect on July 1, 2013. This ban was created when the Centers for Medicare and Medicaid Services (CMS) implemented a national mail order program which prevented senior citizens who live at assisted living facilities from getting diabetic testing supplies from community pharmacies. CMS instituted the new policy in order to prevent large drug suppliers from getting around the mail order process for shipping the supplies in order to receive high reimbursements. The ban incorporated uniform payment rates for both retail and mail-order pharmacies.

Widespread criticism of the ban centered on concern that elderly people with diabetes living in assisted living facilities would no longer be able to get the benefits of face-to-face counseling and adherence services that are offered by community pharmacies that deliver diabetic testing supplies. There were also concerns expressed by many people in the healthcare industry that the ban would leave diabetic residents in assisted living facilities without the means for self-monitoring of glucose. Many small pharmacies expressed concern that because of the ban, many diabetic patients would be forced to switch to lower-quality products in order to monitor their diabetes. The ban put the health of many diabetic residents of assisted living facilities in jeopardy because they rely on small pharmacies to provide face-to-face consultation to make sure that are using their blood glucose monitoring devices correctly and that the results that the devices give are being interpreted correctly.

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Forbes published a story recently that discusses how different communities respond to claims of elder abuse. While everyone understands that the problem is widespread and needs to be addressed, there are many different approaches to dealing with complaints. The author notes how some strategies are far more successful than others. He urges those involved to be proactive in their efforts and develop protocols which actually help seniors instead of allowing mistreatment slip through the cracks.

Pushing It Off On Others Doesn’t Work

For one thing, much mistreatment is never mentioned to anyone–seniors suffer in silence and wrongdoers get away with abuse. Fortunately, ever so slowly, more and more people are recognizing risk factors and reporting it to various authorities. But if those who receive the reports do not act appropriately, then the abuse can still go unresolved, even after someone spoke up.

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Courant News posted an unique story recently about an issue that receives very little attention but that presents a real problem for those interested in every manner of senior care. Obviously there are different levels of assisted living facilities for seniors, from modified apartments with occasional on-site support to intense care provided at skilled nursing facilities (traditional nursing homes). But what about alternatives for seniors who are in prison?

Like the rest of the population, those individuals who are incarcerated for criminal offenses grow older as well. They eventually need the same extra care and support to get around each day as do all other elderly individuals. What arrangements are currently available to provide the support they need?

It is a tricky question that does not necessarily have easy answers.

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Senior abuse is so widespread because those affected are often voiceless. One of the consequences of this dynamic is that solving the problem usually requires the action of outsiders. While educating elderly themselves is helpful, doing that alone will not end the problem. All of us need to come together, commit to be vigilant about the safety and well being of seniors in our lives, and speak up when we have suspicions.

Fortunately, there are some great advocacy groups and public entities leading large-scale programs aimed at organizing around this problem and working to end it. For example, the U.S. Administration on Aging (AOA) recently published information on the “Year of Elder Abuse Prevention.” The project includes dissemination of many different resources all seeking to educate community members about the facets of the abuse, the risk factors, prevention tips, and the best ways to report problems once they are identified.

There are many different ways to to help, and we hope you use the start of a new year to learn more about the problem and commit to ending it.

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NBC News published a story this week in a new nursing home lawsuit from out west that challenges a practice used by some long-term care facilities. According to the story, an attorney recently filed suit seeking to throw out part of a law which allowed facilities in that state to outsource their own management. Essentially, the state law allows nursing home chains to pay another company to actually run the day-to-day of the facility. This “managing” entity is paid a percentage of proceeds for this task. However, the lawsuit aruges that this arrangement is in violation of federal law.

Specifically, the suit suggest that federal law prohibits outside entitites (i.e. a “management company”) from operating nursing homes. If that reading of the federal law is true, it might contradict state laws which allow nursing home chains to operate under these businesses models.

Why does this matter for nursing home residents? Some patient safety advocates argue that this arrangement results in funds that could go toward actually improving resident care intsead being funneled to this management company. Importantly, in most cases these management companies are legal entities controlled by the owning business itself. In other words, it is more a complex business maneuvering than efficiency tool.

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It is a story that has affected far too many families. A loved one begins to show serious signs of aging issues, and concerns about wandering, falls, or receiving day-to-day nursing care pile up. Eventually, the care the senior needs becomes too much–husbands, wives, sons, daughters, and others often are unable to provide the assistance necessary. Looking out for their relative’s best interest, they make the difficult choice of finding what they assume to be an appropriate alternative living arrangement. These care facilities are supposed to ensure their loved one remains safe, received the help they need, and are still able to thrive in their golden years.

Sadly, thriving is the last thing many seniors experience. Instead, often as a result of negligence or mistreatment, the seniors suffer various quality of life problems. It sometimes end in serious injuries or even death stemming from that poor care.

That is exactly what seemed to be the case for a family profiled in a recent WPTV news story. Their husband and father had always been full of energy. As a professional wrestling star for more than three decades–from the 1950s to the 1980s–he entertained audiences as his “Chief White Owl” character. As he aged, however, the man began showing signs of cognitive conditions often attributed to aging. Eventually, after beign diagnosed with end-stage senile dementia, his family decided that he needed to be moved into a facility where he could receive the around-the-clock care that he needed.