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The Center for Justice and Democracy at New York Law School shared a strongly worded letter to House Speaker Paul Ryan and House Minority Leader Nancy Pelosi speaking out against H.R. 1215. The letter, written on behalf of 80 major public interest organizations, highlights the damages that could result from passing H.R. 1215, the so-called Protecting Access to Care Act. Among the most notable passages is this:

“Even if H.R. 1215 applied only to doctors and hospitals, recent studies clearly establish that its provisions would lead to more deaths and injuries, and increased health care costs due to a “broad relaxation of care.” Add to this nursing home and pharmaceutical industry liability limitations, significantly weakening incentives for these industries to act safely, and untold numbers of additional death, injuries and costs are inevitable, and unacceptable.

The latest statistics show that medical errors, most of which are preventable, are the third leading cause of death in America. This intolerable situation is perhaps all the more shocking because we already know about how to fix much of this problem. Congress should focus on improving patient safety and reducing deaths and injuries, not insulating negligent providers from accountability, harming patients and saddling taxpayers with the cost, as H.R. 1215 would do.”

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After a couple of false starts, H.R. 1215, the Protecting Access to Care Act is going to the House floor this week.  This massive medical malpractice bill also applies to nursing home and drug and device cases.  The bill caps non-economic damages at $250,000, eliminates joint liability for economic and non-economic loss, caps attorney fees, has a restrictive statute of limitations and says that a doctor and a pharmaceutical company cannot be named in the same lawsuit.

This means, among many other things, that finding an attorney to handle a case of nursing home abuse or neglect will be more challenging and that financial compensation for injuries such as pain and suffering cannot surpass $250,000. 

The bill will not get better during floor debate.  The only amendments that will be allowed are amendments that make the bill worse for patients.  The debate on this bill will begin on Tuesday with vote on final passage scheduled for Wednesday. 

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The Des Moines Register recently co-published a report with ProPublica, a public interest group, about the uptick in reports of nursing home employees using social media as a way to share demeaning photos and videos of residents.

After several stories made headlines last year, the Centers for Medicare and Medicaid Services (CMS) called on nursing homes to develop training and policies regarding resident abuse. Specifically, CMS encouraged facilities to educate staff about improper use of cell phones and social media as a means of sharing ‘demeaning or humiliating’ photos and videos. Regardless of the push for facilities to prevent and correct staff members from using Facebook, Instagram, Snapchat and other platforms to share offensive content, the report discovered at least 18 cases of such abuse in the last year alone, with 6 of those in Iowa. The authors note that the number of incidents has increased since 2015 and that the 18 recent cases of which they’re aware are likely just the tip of the iceberg. In all, ProPublica states that they are aware of 65 cases of social media posts of nursing home residents since 2012.

An Increasing Problem

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It looks like trouble for HCR ManorCare. The nursing home giant, the country’s second largest chain, was recently abandoned by the private equity firm that has owned the company for the last 10 years. The firm, Washington, D.C.-based Carlyle Group, had already sold off nearly all of the real estate associated with ManorCare in 2011.

Rumors of problems at ManorCare began over 2 years ago when the U.S. Justice Department filed a lawsuit against the chain for billing Medicare for ‘medically unreasonable and unnecessary services.’ While the chain has attempted to blame the fraudulent charges on a greedy few rather than on a corporate moneymaking scheme, that hasn’t prevented many high level ManorCare executives from leaving the company. Unnamed sources within ManorCare have recently revealed that the company owes close to $400 million to investors for senior loans. Senior loans are particularly important because borrowers are legally obligated to repay this type of debt to a lender before paying any other creditors. In light of these revelations, several vendors have recently abandoned relationships with ManorCare, a sign that the chain’s financial issues are leading to a bankruptcy filing and potential closure of facilities.

ManorCare Well Known but for Many of the Wrong Reasons

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The widow of a Charleston, West Virginia man is suing the nursing home that allowed her husband to allegedly leave the facility without pants in 42 degree weather in March 2015. The widow, Patsy Rowe, alleges that Princeton Center LLC was negligent in its training of staff on how to properly supervise and care for residents suffering from mental disabilities. Due to his elopement from the facility, Mr. Rowe suffered injuries that ultimately led to his death in October 2015.

The case is a sad reminder of the frequency of wandering and elopement from nursing homes. Elopement specifically refers to a resident leaving the facility unnoticed, while wandering refers to the ability of a resident to move freely throughout a facility without adequate supervision. Both instances can be tragic for a resident who suffers from limited physical or mental capabilities. Nursing homes and care facilities are directly responsible for the supervision of its residents and are required to meet the specific needs and care requirements of each person. Oftentimes, lack of staff and improper training on safety measures are to blame for a resident being able to wander through or altogether leave a facility.

The Chicago, Illinois nursing home abuse and neglect attorneys of Levin and Perconti have successfully handled numerous cases of wandering and elopement from facilities, including a $1 million verdict for the family of a woman who wandered unnoticed from her room and died from a 5th story fall from a window in her nursing home.

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The National Adult Protective Services Association has shared findings from a study evaluating the differences between substantiated and unsubstantiated cases of sexual abuse in care facilities. The study, entitled Victim, Allegation, and Investigation Characteristics Associated with Substantiated Reports of Sexual Abuse of Adults in Residential Care, considered 410 reported cases of sexual abuse in New Hampshire, Oregon, Tennessee, Texas and Wisconsin that occurred over a 6 month period in 2005. Of the 410 cases, 72 (or 18%) were found to be substantiated by a state regulatory agency or a state Adult Protective Services (APS) agency. The study authors spent 3 years interviewing investigators from APS agencies, reviewing records from the Centers for Medicare and Medicaid Services (CMS), and evaluating themes and trends among the data they gathered.

The 72 substantiated cases shared several key characteristics:

  1. Sexual abuse cases were more likely to be substantiated if the reporting of the incident occurred within 3 days.
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As congress continues working on the American Health Care Act (AHCA), the bill that will repeal and replace the Affordable Care Act (Obamacare), one of the main issues at hand is a cap on federal contributions to state Medicare & Medicaid budgets. A cut or cap on Medicaid would be tragic for millions of Americans who rely on it to receive long term care.

The National Consumer Voice, an elder advocacy group, cites many reasons why capping medicaid spending would be detrimental. Most notably, the group points out that Medicaid is the only way most elderly Americans can afford a nursing home or long term care. With the average annual cost of nursing home services nearing $84,000, many of America’s elderly can simply not pay for their own care. Medicare covers medically required care in a skilled nursing facility, but the majority of Americans only require custodial care, which includes tasks such as bathing, getting dressed and learning to take medications.

National Consumer Voice also notes that Medicaid helps the elderly stay in their own homes by allowing them access to home health providers that can assist with custodial care.

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There are perfectly valid reasons to evict, discharge, or transfer someone from a nursing home: A resident has recovered and no longer needs specialized care, a resident has become a threat to staff or other residents, or if at a private facility, they are unable to pay for the services provided. But what about residents who are evicted without any reason? The practice, referred to as involuntary discharge, is on the rise and nursing homes in Illinois are guilty of it. In fact, the number of involuntary discharges from Illinois nursing homes has more than doubled in the past 5 years.

In a May 26th article on NPR.org, Illinois and Maryland were both called out for their high eviction rates. Maryland’s attorney general, Brian Frosh, has filed a Medicaid fraud lawsuit on behalf of the state against one particular chain of nursing homes, Neiswanger Management Services, alleging that they are guilty of seeking reimbursement for discharge planning services that it never provided. Discharge planning requires nursing homes to discuss plans of an eviction with a resident and their loved ones, as well as preparing detailed records for the resident to give to their next facility or care provider. According to the attorney general, the particular chain that has been named in the lawsuit has eviction rates that are 100x higher than any other nursing home in the state of Maryland. Why are the eviction rates so much higher at a Neiswanger-owned facility than at others in Maryland? The state believes it’s due to the reimbursement rules for Medicaid vs. Medicare. Medicare reimbursement is only good for the first 100 days of long term care treatment. Once residents transition to Medicaid, they’re less attractive to the facility because reimbursements under Medicaid are also lower. Frosh noticed that many of the evicted residents had been evicted right as their 100 day Medicare reimbursement period was ending, proving that Neiswanger wanted to empty beds to take in more Medicare residents.

Not only were residents wrongfully evicted, but many, including those suffering from dementia, were left on family members’ doorsteps, at homeless shelters, and in hospital waiting rooms.

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What little hope remained that arbitration clauses would disappear from nursing home admission paperwork is now gone. Friday, June 2 was the deadline for the Trump Administration to submit paperwork to continue the appeal of a Mississippi Supreme Court judge’s decision to block a ban on nursing home arbitration clauses.  Instead, the administration decided to withdraw from the fight.

An Attempt to Restore Justice

Last September, the Centers for Medicare and Medicaid Services (CMS) released their updates to nursing home regulations for the over 15,000 facilities that currently receive Medicare and/or Medicaid support. One of the biggest changes was a ban on mandatory arbitration clauses in nursing home admission paperwork. An arbitration clause requires a potential plaintiff to agree to forgo a trial by jury and work with an arbitrator who will attempt to get both sides to come to an agreement on a settlement. The problem, besides the fact that it forces vulnerable Americans to waive their seventh amendment right to a trial, is that nursing home arbitration typically favors the defense by allowing them to select the arbitrator. Evidence has shown that when nursing home disputes are settled by arbitration, the outcome tends to be more positive for the guilty party and not the injured victim.

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A recent meta-analysis of 8 studies conducted between 2005-2016 has revealed that 27% of nursing home residents are infected with some form of antibiotic-resistant bacteria. The findings were published last week by Medline Plus, the National Institute of Health’s educational website.

Nursing Homes: A Perfect Breeding Ground for Bacteria

Antibiotic-resistant bacteria, often referred to as superbugs, are worrisome to health care providers and nursing home residents and their loved ones because of the impact they can have on weakened immune systems. Nursing homes are considered a breeding ground for superbugs for various reasons. Unlike a hospital, nursing homes allow most of its residents to frequently come and go, share various spaces and rooms and even share food.  Close living quarters, coupled with the fact that many of these powerful bacteria cause little or no symptoms, allow superbugs to be spread easily. Hand washing is considered the primary method of infection prevention, but controlling and preventing the spread of these superbugs will require more than just soap and water. Infection control experts believe the study’s findings have created a valuable opportunity for nursing homes to increase staff and resident education of infection prevention and control.