Articles Posted in Ombudsmen and Resident Advocates

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residents' rights month

Part 2: Residents’ Rights Month

October is Residents’ Rights Month, an annual event created by advocates to honor residents living in all long-term care facilities. This is an important time for family members and residents to be reminded of the rights anyone living in a nursing home has, protected by the 1987 Nursing Home Reform Law. In a previous blog post, the nursing home abuse and neglect attorneys at Levin & Perconti reviewed the first half of these rights to ensure readers understand residents must be treated with the same rights as those individuals residing in the larger community. Those rights found in a blog post titled Part 1: Residents’ Rights Month, include the 1) right to be fully informed, 2) right to complain, 3) right to participate in one’s own care, and 4) right to privacy and confidentiality. The remaining four residents’ rights outlined in the reform law include:

  1. Rights During Transfers and Discharges
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nursing home rights
Part 1: Residents’ Rights Month

The 1987 Nursing Home Reform Law is a federal law requiring nursing homes to “promote and protect the rights of each resident” in support of individual dignity and self-determination. Unfortunately, the law is often violated without repercussion because most seniors (and their family members) are not aware of the legal protections that support an individuals’ rights when residing in a nursing home facility. The month of October has been recognized as a time to address these needs and protections. To show support, the nursing home abuse and neglect attorneys at Levin & Perconti would like to review the first four residents’ legal rights outlined within the 1987 Nursing Home Reform Law in Part 1 of this Residents’ Rights Month blog series.

Four Nursing Home Rights You Need to Know

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A woman who served more than 10 years as a New Mexico long term care ombudsman and claimed she was fired in 2016 for lawfully giving records under a Freedom of Information Act request has received an undisclosed settlement against the Department of Aging and Long Term Services. The woman, Sondra Everhart, handed over boarding home records to the Albuquerque Journal only to have the information turn up in a scathing newspaper article of the facilities. Boarding homes are used in New Mexico as living centers for mentally ill patients who have recently been released from state-run psychiatric facilities.

In the lawsuit, Everhart alleged that she was the target of extensive efforts by her employer, the Department of Aging and Long Term Services, to get rid of her. Providing records in response to a public information request was not against policy, but the state used it as an excuse to finally get rid of her. Everhart had spent her career as a long term care advocate, arguing that boarding house residents deserved better care and conditions, that the elderly be given more assistance in preventing financial scams from happening to them, and was vocal about exposing Medicaid fraud within her department.

Prior to her termination, Everhart filed a complaint with the federal government, alleging that the department was purposely making her job difficult, which is illegal. After her complaint, the department sought legal counsel on their ability to fire Everhart. Despite being advised that her firing would be seen as retaliation, the department moved ahead and fired her under the premise of violating policy by sharing records.

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Last week we shared information on the report issued by the federal Long-Term Care Commission. Created as part of the tax bill that avoided the “fiscal cliff” at the beginning of the year, the Commission was charged with holding hearings and issuing a report on the state of long-term care in the country.

The Commission was comprised of fifteen members of various interest groups, appointed by both Republican and Democratic leaders from D.C. It was given six month to complete its work, which was accomplished earlier this September.

Alternative Report Discusses Financing

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Unlike seniors who receive aid from at-home caregivers, those in nursing homes have virtually zero control over the actual front-line workers on whom they rely. Upon moving into a long-term care facility, residents immediate count on the individuals who were hired for basic tasks–preventing falls, proper grooming, ensuring nutrition, and more. When those caregivers leave, it is the owners and operators who make decisions about hiring new employees. Residents are left out of the process entirely.

Those of us who work on cases of nursing home neglect appreciate that this theme of complete reliance on others is at the center of the nursing home resident predicament. Much like the trust a medical patient places in their surgeon upon being put under anesthesia, nursing home residents (and their families) must rely on caregivers. In fact, the ultimate trust is actually places in the owners and operators of the homes, who make decisions about hiring caregivers, ensuring adequate resources, sufficient safety policies, and more.

Bad Care Trends

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Arbitration clauses have long been an issue in Illinois nursing home neglect cases. As many are aware, these are clauses included in admissions documents and sometimes signed by families while admitting their senior into the home. The clause is the nursing home company’s attempt to force any future neglect case to go through an alternative arbitration process for resolution instead of using the traditional legal justice system with a judge and jury. Nursing home companies like arbitration for one reason: it offers them a better chance at avoiding accountability than the regular courtroom. For this reason families are encouraged to never signs an arbitration agreement.

Beating Back the Clause

However, even if one of these was signed, that does not mean that a future elder neglect claim can never been seen in court. That is because there are times when nursing home neglect attorneys can successfully challenge the clause and allow a traditional lawsuit to be brought.

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January seems to be a time of year when virtually everyone is sick. Colds and flus abound after the holidays, as family gatherings, friendly holiday events, and travel combine to transfer germs and other pathogens between different groups. No one is immune from the dangers of flu season, and chances are that you or someone in your family has felt the effects in the last few weeks.

For most of us, getting the cold or flu is incredibly unwelcome but not debilitating. We may be out of action for a few days, but eventually it dissipates and everything is back to normal. Others are not so lucky. That includes many seniors with weakened immune systems and other vulnerabilities that make a serious cold or flu far more damaging. It is no wonder, then, why nursing home residents and other elderly community members are strongly encouraged to get flu shots. This simple step can literally mean the difference between life and death for a resident.

Don’t Forget About Employees

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We hear it all the time: nursing homes do not have enough money to provide proper care to their residents. When neglect or abuse is uncovered and serious problems are identified–often insufficient staffing levels–then the first line of defense is usually the difficulty these companies have in bringing in enough money to pay for the care needed. Of course, the actual front-line care workers are rarely to blame for issues like lack of staffing; they are just doing their job the best they can, often with unmanageably low support. But just because a company claims to lack resources does not mean that they actually do not have the funds they need to provide proper care.

After all, most of those making these complaints are private businesses. Why would they be running these facilities if it was not profitable? Would they continue in business if the cost of providing adequate, safe care was more they they received from those paying for it? The truth is, they wouln’t. The owners and operators continue to make steady profits on these businesses, and claims about lack of resources often just mean one thing: they do not want to cut into their healthy profit margin.

There is no harm in making a profit in business–that’s the whole point. But when your business is providing skilled medical care to others, then it is not acceptable to make excuses of profit when poor care leads to serious harm to those vulnerable consumers counting on you. Sadly, that is exactly what happens in so many corners of the skilled nursing home business world.

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The new Russell Sage e-book on long-term care (viewed here), includes a chapter on the payment systems for these crucial services. It is impossible to separate programs to tackle the elimination of neglect and abuse without taking finances into account. Who pays for this care, how they pay for it, and how the funds are used is at the center of all discussions about quality of care.

In general, long-term care services–including stays in a nursing home or via at-home support–are paid for by insurance. Some individuals have private long-term care insurance while others (a majority) rely on public insurance programs (Medicaid) to pay for the care. It is undeniable that public coffers are stretched to the bone. No one is quite sure how the Medicaid system will be able to continue paying for the current level of services indefinitely, especially considering the growing number of seniors who will likely need long-term care paid for via Medicaid in the future. However, there has yet to be a strong push for increased use of private insurance to ease the burden on the public. Some hope this changes.

Private Long-Term Care Insurance

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The American Association of Justice recently discussed a new ruling that may bring certainty to a previously unsettled area of nursing home law. The Eleventh Circuit, a federal appellate court, ruled that proceeds of wrongful death lawsuits following nursing home deaths belong to the surviving children, not Medicare. This holding reverses a lower court decision that found otherwise.

Specifically, with this decision the court rejected claims by Medicare (managed by the US Department of Health and Human Services), that it was entitled to first and full reimbursements for payment it had made following settlements after negligent nursing home deaths. Of course, that meant that the surviving family members of the nursing home victim would be treated as second-in-line, to receive only whatever remained following the initial payment of the settlement funds to Medicare.

Put more succinctly, the court of appeals judge in this case explained that the real issue was simple: “whose property is the settlement?”

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