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Cisco Systems, the California-based technology company, recently received a blow when a San Francisco judge ruled that a former employee with an age discrimination suit is allowed to pursue action against the company through the courts. Upon hiring, Cisco required employees to complete a large amount of standard paperwork, including an agreement they called a Proprietary Information & Invention Agreement. The document detailed how employees should handle all proprietary information, with a statement embedded in the fifth page that says any labor disputes will be forced into binding arbitration. Upon being hired, the employee signed the agreement, along with a stack of others, assuming the document stated the obvious. After being forced to file suit against the company for age discrimination, Cisco attempted to force the woman into arbitration. Her attorney took the matter to court and a judge ruled that Cisco’s bizarre placement of the binding arbitration requirement was an attempt to conceal a controversial policy.

Obama & the Courts vs. Arbitration Clauses

In 2014, former President Obama ordered that all companies with $1 million plus in federal contracts eliminate arbitration clauses that require agreement before any conflict has happened. In other words, having an arbitration clause in new hire paperwork was deemed by the President to be illegal.

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The Centers for Medicare & Medicaid Services (CMS) released their January 2017 posting of nursing homes that are a part of their Special Focus Facility Initiative, or SFF.  The initiative is an effort to identify and improve facilities that are not meeting the standards required by Medicare & Medicaid. CMS hopes that by placing these nursing homes on their watch list, they will undergo serious efforts to adopt sustainable policies and procedures that improve their ability to care for residents. Nursing homes placed in the SFF initiative are identified on the CMS website with the aim of informing potential residents and their families of the quality of care currently being provided at the facility.

Deficiencies are a reality for all nursing homes. CMS says that on average, each nursing facility inspection yields 6-7 deficiencies. However, the nursing homes that are put into the SFF Initiative have a higher than average number of them, as well as more serious deficiencies than most facilities. While the ultimate consequence is cutting a nursing home’s Medicare/Medicaid funding, the aim of the program is to provide the motivation for the facility to implement improvements and continue making gains in patient care within a specific timeframe. CMS says that only 16% of homes on the SFF list see their funding eliminated.

3 Illinois Nursing Homes Identified

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Starting January 30th, Congress began reviewing the latest revisions to nursing home regulations. In an earlier blog post today, we highlighted some of the new provisions, including those we found extremely favorable for America’s elderly. If you or someone you love is a nursing home resident, we strongly encourage you to take to Twitter and send a DAILY reminder to your congressman to let them know that you support the latest revisions. One of the major policies introduced was a ban on requiring binding arbitration. Binding arbitration would take away the right to sue. No matter how egregious the abuse or neglect was that occurred, by allowing binding arbitration to remain on nursing home contracts, a resident would not be eligible to truly fair compensation.

Why Now?

When a new administration enters the White House, they are given an opportunity to overturn any rules or regulations implemented in the last 60 days of the previous administration’s tenure. This is referred to as a Congressional Review Act and it is anticipated that it will be completed by February 11, 2017.

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In November 2016, the Centers for Medicare & Medicaid Services (CMS) began implementing their first newly revised set of nursing home regulations since 1991. According to CMS, 1.5 million Americans call a long term nursing care facility their home, a number that is increasing year by year. With such a large volume of residents in nursing homes, coupled with the fact that for-profit companies own and operate the majority of them, CMS finally decided to tighten rules imposed on the facilities. CMS hopes that the appeal of receiving as much funding as possible from Medicare and Medicaid will encourage facilities to abide by the latest set of changes.

The Good

One of the best provisions outlined in the new regulations is the call for staff training on elder abuse and neglect, specifically on how to care for residents with dementia. Dementia in some form is present in the majority of residents at nursing homes and knowing how to properly care for patients facing this diagnosis has been an age-old problem in long term care facilities.

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In the fall & winter seasons, everyone is aware of the potential of contracting influenza, better known as the flu. The elderly are particularly vulnerable to the flu and the CDC puts people over the age of 50 and those who reside in nursing homes on the short list of those who should be given priority in case of a vaccine shortage. But what about other serious viruses that quickly spread during the cold months and have no vaccine to help prevention? Nursing homes, like hospitals and dormitories, are particularly favorable environments for viruses to spread. With residents living in close quarters and using shared spaces, everyone from the staff to fellow residents and visitors are vulnerable to illness.

RSV and HMPV – What Are They?

Just recently, Respiratory Synctial Virus or RSV, has begun popping up on the radar of nursing homes. When a healthy adult contracts the virus, symptoms are similar to those of a cold or a mild flu. When an adult with a compromised immune system falls ill with RSV, it can quickly turn from a minor cold into pneumonia and even lead to death. While there is no medication or vaccine for RSV, as with all viruses, proper hand washing and isolation are considered preventative measures.

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Dr. Henry Heimlich, inventor of the Heimlich Maneuver, died from a heart attack at age 96 on December 17th in Cincinnati. In 1974, Heimlich told The Journal of The American Medical Association (JAMA) about a method of applying subdiaphragmatic pressure to expel food or other items that had become stuck in a person’s air passage. Heimlich told NPR that several months later JAMA called him to say they wanted to rename it to the Heimlich Maneuver because so many lives had been saved by the method.

Heimlich Puts His Method to the Test

In May 2016, just 7 months before his death, Dr. Heimlich sat down for dinner at the Cincinnati assisted living facility that he called home. Just as he began to eat, a fellow resident started choking. Heimlich, at the age of 96, hopped up and used his famous maneuver to save the patient’s life.

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An NPR station out of Southern California recently featured a story about an 88 year old woman, Elizabeth Fee, who had hip surgery at a reputable California hospital and later died from alleged neglect at a nursing home recommended by and affiliated with the hospital. The piece discussed the family’s lawsuit against the hospital, California Pacific Medical Center, and shone a light on an alarming practice in hospitals: referring patients to nursing homes and rehabilitation facilities who have been cited for violations and who have received low ratings by Medicare.

Hospitals Are Fearful of Violating Medicare/Medicaid Rules

Families such as Fee’s are making major life decisions for their loved ones and are looking to their trusted healthcare team for counsel. Sadly, many hospitals are afraid to violate a Centers for Medicare and Medicaid Services (CMS) regulation that says hospitals should not “specify or otherwise limit” the choice of facility that a patient visits after being discharged from a hospital.  However, most patients and their loved ones would interpret being given a sheet of paper with a list of nursing homes as an endorsement for those facilities listed. While this rule isn’t clearly defined, hospitals tend to shy away from providing information about citations and incidents that have occurred at nursing homes on their list of follow-up care facility suggestions.

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Disability Rights California (DRC) released a January report entitled Keep Nursing Home Residents Safe, in which the government-endorsed protection agency highlighted the inconsistencies in citations for actions deemed to be in violation of the Nursing Home Care Act. The report also focused on the negligible fines associated with such violations.

How are Violations and Fines Issued?

Citations in most states are handed out by a state department of public health. In California, the CA Department of Public Health & Certification Division is responsible for assigning violations and their associated fines to nursing homes. Each state upholds their own grading system for violations and is also required to maintain a publicly available record of every violation and fine levied upon a nursing home or care facility. In California, a Class AA fine is considered the most severe and carries a maximum $25,000 fine, a slap on the wrist considering many nursing homes are run by profitable corporations.

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The family of a man who died from sepsis and respiratory failure is suing Madison Health & Rehabilitation Center in Richmond, Kentucky for failing to correct and prevent pressure ulcers that led to his death.

Donald Shelton was admitted to Madison Health & Rehab with a foot wound and a pressure ulcer on his buttock and was expected to receive care to heal his injuries. Instead, the facility did not bathe Mr. Shelton in the 8 days he was a resident and failed to put together a care plan that outlined a course of treatment. In a span of just over a week, Mr. Shelton developed two additional bedsores and tissue death in his genital area that resulted in necrosis. As a result of the existing sores and newly developed ulcers, Mr. Shelton’s body and organs were overwhelmed by a serious infection known as sepsis. He died exactly 8 days after being admitted to Madison Health & Rehabilitation.

Pressure Ulcers – A Preventable Injury and Death

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The family of an elderly couple who died within 2 months of each other at a Eugene, Oregon nursing home has sued the facility, citing wrongful death as a result of the alleged incompetent and negligent care the couple received while living at the home.

Harvey and Maxine Hanson, 92 and 91 at the time of their deaths, were admitted to Avamere Riverpark of Eugene in March 2014. Both patients were classified as a high fall risk and despite Mr. Hanson’s doctor’s advice for physical therapy, Mr. Hanson managed to fall 13 times in the mere 8 months he resided at Avamere, never receiving the recommended therapies to reduce his risk. Mrs. Hanson fell at least 4 times while a resident.

Falls Just One of Many Disturbing Claims