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Minnesota Senator Al Franken has sent a letter to the Administrator of the Centers for Medicare and Medicaid Services, strongly asking them to ban nursing home arbitration clauses. In short, nursing home clauses strip away a vulnerable victim’s 7th amendment right to a jury trial, while forcing them to negotiate unfair settlements outside the court system. Victims and their loved ones would no longer have access to a judge and jury of their peers to decide fair financial compensation for horrific acts of nursing home abuse and negligence that cause injury and death.

Senator Franken’s letter, also signed by 30 Senators from varying states, asks CMS Adminstrator Seema Verma to “Consider the story of Roberta Powers, as reported by the New York Times, who suffered from dementia and diabetes and lived in a nursing home in Birmingham, Alabama. Roberta’s daughter Rochelle went to visit her mother one day and found Roberta vomiting and sick with abdominal pain. Rochelle immediately alerted the nursing staff and specifically noted the number of pills that Roberta had in her hand. A few days later, Roberta’s son Larry came to check on his mother only to find that she was unresponsive. Larry called 911, and Roberta was taken to the emergency room. She died the next day. An autopsy revealed that Roberta’s blood contained more than 20 times the recommended dosage of her diabetes medication. When Roberta’s family sought to hold the nursing home accountable in court for failing to supervise the administration of medication to a resident with dementia, the facility pointed to the forced arbitration clause in Roberta’s admission papers, forced the case out of court and into arbitration, and the family was awarded nothing.”

Roberta Powers story is just one of many who faced an untimely death because of a nursing home’s failure to properly dispense or monitor medication. For each story of medication error, there is also one detailing other types of abuse and neglect, such as injury and death from falls and bedsores. The reality is grim and as nursing home resident advocates, we are grateful to Senator Franken and his colleagues, including our own Illinois Senators, Dick Durbin and Tammy Duckworth, for calling attention to the egregious harm that binding arbitration in nursing homes causes.

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Finally a potentially good bit of news for nursing home residents. Modeled after a program that encourages low readmission rates to hospitals, the Centers for Medicare and Medicaid Services (CMS) will introduce a new financial incentive program in October 2018 for skilled nursing facilities. Once the rule is put into place, CMS will withhold 2% of a facility’s Medicare reimbursement until they have shown that they can keep down the number of their residents who return to a hospital within 30 days of discharge. The CMS proposed readmission rate is 20%, and according to reports, the 2015 national average was between 5-10%.

Chicago Hospitals Partnering with Selected Facilities to Reduce Readmission

Hospitals themselves have been under the gun since the Affordable Care Act introduced the Hospital Readmissions Reduction Program in late 2012. Hospitals with high readmission rates within 30 days of discharge are punished by receiving reduced Medicare and Medicaid payments. With readmission now a major quality measure for hospitals, many have chosen to invest in a patient’s care after they’ve left. A Crain’s Chicago Business article uses the Rush University hospital network as a prime example of how hospitals are pushing for better post-discharge care. The hospital system says that they have begun to cultivate a small referral list of skilled nursing facilities in an attempt to ensure their patients are being set up for long term success.  The hospital network has also begun encouraging their physicians and nursing staff to educate and inform clinical staff at the receiving facility about their transferred patients. Previously, the norm was to send medical records without a conversation actually taking place. Rush has also created partnerships that allow their own nurses to work at certain referral facilities. 

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Binding or Forced Arbitration, the process of requiring customers, patients, and nursing home residents to agree to settle disputes outside of court, has been gaining popularity. From a big business perspective, arbitration significantly reduces the costs associated with a legal dispute and traditionally favors the party being sued over a death, injury, or other grievance.

In the past year, binding or forced arbitration in nursing homes has been a frequent topic of conversation as conflicting actions have played out within the Centers for Medicare and Medicaid Services (CMS), the agency that oversees federally funded nursing homes in this country. Last year, the Obama Administration and CMS passed a rule that would ban binding arbitration clauses as a condition of admission to nursing homes. In December, a federal judge in Mississippi blocked the enforcement of the ban. And in the most surprising move of all, just last month CMS did a 180 and decided that they would support binding arbitration clauses in nursing home admission contracts.

What is Binding Arbitration?

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The Pennsylvania Department of Health has been cracking down on nursing homes in the state, issuing $800,000 in fines and sanctions for violating patient care standards. Pennsylvania nursing homes have been under a microscope after the state’s attorney general filed a lawsuit alleging poor care against Golden Living Centers, one of the largest nursing home chains in the country.  The lawsuit was ultimately dismissed, but revealed that the Pennsylvania Department of Public Health had been rarely sanctioning nursing homes over violations, including those that put residents in immediate jeopardy.

The increase in deficiencies and fines is also said to be due to the fact that state has reinstated mandated anonymous reporting. Anonymous mandated reporting requires that anyone in a mandated reporter position (typically CNAs, physicians, nurses, administrators and pharmacists) should report patient care violations of any kind.

Pennsylvania newspaper Reading Eagle quotes Lori Smetanka, executive director of the National Consumer Voice, as saying “In 2014, state investigators categorized seven deficiencies as having caused actual resident harm. Fast forward to this year, that number in the first six months of 2017 was 88.”It doesn’t naturally go up on its own. You cannot say that care significantly changed in those six months. Obviously, something else spurred that on.”

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During the 2013-2014 flu season, a Brown University study tracked 38,000 nursing home residents from 823 nursing homes in 38 states who received the Fluzone vaccine, a high dose shot with 4 times the antigen, to measure their hospitalization rates. Of the study participants, 1/4 were over the age of 90. Previous studies had only focused on the effects of giving the high dose vaccine to the healthiest populations. The findings revealed that hospitalization was 3.8% for those who received the standard does and 3.4 percent for those who were given the high dose. The biggest benefit was the reduction in hospitalization for respiratory illnesses. Nursing home residents who were given the high dose shot saw a 13% drop in hospitalization rates. That same group was also hospitalized the least for any other reason.

However, one significant finding was that death rates were unaffected by the type of flu vaccine nursing home residents received. New York pulmonologist Dr. Alan Mensch told Medline Plus that the major strain of flu during the 2013-2014 flu season was one of the least harsh we’ve had, concluding that the lessened severity might have played a part in the lack of change in the death rate.

It is worth noting that the manufacturer of the Fluzone, Sanofi-Pasteur, funded the Brown University study and that the final conclusion of the lead study author was that the drug, although more expensive than the standard-dose vaccine, ‘far outweighs its cost.’

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In 2011, veteran Anthony Spallone of the Grand Rapids Home for Veterans took the lead on filing a lawsuit against the Grand Rapids, Michigan nursing home, alleging that the plan to privatize the facility would lead to disaster for him and his fellow residents. At the time, Michigan’s governor, Rick Snyder, stated that privatization was in the facility’s best interests and that state-employed nursing aides should be replaced by cheaper, contracted employees from a company called J2. Dedicated aides who spent more time than any other employee with Grand Rapids Home for Veterans residents would be cast aside to make room for aides from J2, a company with a history of providing poor care. Privatization went ahead and as predicted, residents at the Grand Rapids Home for Veterans suffered. Anthony Spallone’s lawsuit against the facility was dropped.

Worst Fears Realized

In 2013, Michigan Representative Winnie Brinks began pushing an act that would address better care for residents of the Grand Rapids Home for Veterans. She, along with 2 fellow congressmen, were shocked by what they witnessed during a visit to the facility. The privatization had indeed played a part in the decline of the care and conditions there. It was as if everything Anthony Spallone had tried to prevent in 2011 had come to pass.

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On July 24th, our attorneys secured $875,000 for the family of Antonio Mares, a resident of the Center Home for Hispanic Elderly in Chicago’s Wicker Park neighborhood. Physician’s orders indicated that Mr. Mares was to only receive soft foods, a requirement that was violated by the facility and resulted in his death.

In November 2012, a CNA brought Mr. Mares his dinner, which consisted of a food not allowed by his diet plan, and left his room. The CNA returned to find Mr. Mares choking and unsuccessfully attempted the Heimlich maneuver. The CNA also used the call button in his room, but no members of the nursing staff responded. Mr. Mares’ death is the result of neglecting to follow a physician-ordered diet plan, as well as failing to adhere to the standard of care for those who are at risk of choking. All nursing home residents who are determined to be at risk for choking are to be closely supervised while eating.

In a statement made by Isela Mares, Mr. Mares’ daughter, she says “Our family was robbed of the opportunity to properly say goodbye to my father, and while no sum of money will ever make up for our loss, we are hopeful that this settlement will incentivize the nursing home to make some needed changes.”

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A New York Times ‘Your Money’ column ran in late July that focused on the ethics of end of life planning that involves shifting assets to qualify for Medicaid. According to the author, Ron Lieber, his previous post on the topic was met with equal parts outrage and support. It brings up an important and sobering point: one day our parents, spouses, siblings and even ourselves, will likely require some sort of skilled nursing care as we age. Whether that takes place within our own four walls or in a long term care facility, the looming question is how to pay for that care when the time comes. For many who have sacrificed and saved their whole lives with the hope of passing assets to loved ones (be it in the form of cash, businesses or other assets), the thought of spending and liquidating everything to pay for their own care is devastating.

There is an entire area of law devoted to assisting clients in rearranging their assets so as to qualify for Medicaid, the government program that among other things, covers long term care costs for elder Americans of limited financial means. Whatever your own thoughts are on the issue, the comments from those in support of and those against the practice of Medicaid planning are worth reading. We encourage you to read the article to decide for yourself.

 

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In June, the Centers for Medicare & Medicaid Services (CMS) proposed a new rule that would allow nursing homes to require arbitration agreements as a condition of admission. A nursing home arbitration agreement is a legally binding commitment that forces nursing home residents and their loved ones into negotiations over conflicts that would normally go through the court system. Nursing home arbitration agreements remove the 7th amendment right to a trial by jury and are infamous for pushing grieving families into unfair agreements with biased arbitrators chosen by nursing homes themselves. Binding arbitration agreements are well known for allowing lesser settlements for victims of nursing home abuse and neglect while keeping tragic truths out of the public eye. Arbitration agreements allow a nursing home to continue to offer suboptimal care while still admitting unsuspecting elderly residents. The passage of such a rule would be devastating to the millions of Americans who currently reside in nursing homes and the millions that will require nursing home care in the coming years.

Sudden Change of Opinion

The recent push by CMS to pass a rule allowing binding arbitration agreements in nursing homes has been met with suspicion. Just last year, the government organization responsible for regulating nursing homes attempted to pass a law BANNING the very same agreements they’re now rallying for. The enforcement of a ban on arbitration agreements was halted by a federal judge in Mississippi. Those who fought to halt the ban? Lobbyists and industry groups with a stake in the profitability of nursing homes.

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After an employee stole pain medicine for months from a nursing home resident dying from pancreatic cancer, a nursing home in Lexington, South Carolina has finally agreed to pay $1 million to the family of the victim.

The employee responsible for the theft is set to stand trial for criminal charges in December, while another employee has already pleaded guilty for being an accessory to the crime and failing to report it.

Due to the habitual theft of his prescribed pain medication, the victim, Henry Sloan, spent the last several months of his life needlessly suffering from terminal cancer. The judge who presided over the former employee’s criminal trial called the case “one of the most callous things I’ve ever experienced.”