Articles Posted in Legislation 1

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Most legal issues related to nursing home abuse and neglect are state cases. In general, injury matters are rooted in basic negligence that is heard in state court, unless there are unique issues involved or parties from different states. One of those unique issues which has actually led to federal court decisions in recent years relates to arbitration.

We have frequently discussed how binding arbitration agreements are often snuck into nursing home admission forms. These agreements may require a family to use a separate arbitration process to resolve disputes–including those for neglect and abuse–instead of filing a lawsuit and being heard in the traditional manner. The procedural rules are different in arbitration, and it is a process that is generally far more favorable for the nursing home company–that is why they like it.

Over the years, there have been various legal cases challenging the validity of these mandatory arbitration agreements. Those cases have made various arguments as to why specific agreements are invalid as well as why all such agreements should not hold. Some of those suits were made in state courts, while a few have been heard by federal judges.

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Earlier this week, as reported by BND, a Cook County jury awarded an elderly woman $843,000 for injuries she sustained in a fall at her Chicago area nursing home. Falls are the most prevalent injury that can be sustained in a nursing home according the Center for Disease Control ( CDC ), accounting for nearly a million falls yearly. While, some of the injuries sustained in falls are an unavoidable consequence of the victim’s physical characteristics and limitations, the CDC estimates that 16% to 27% of the falls are a result of environmental hazards.

Injury awards for falls in nursing homes are not isolated incidents and can cause serious and debilitating pain for the victim for the conceivable future. That is why Illinois and most other states have enacted many laws, which facilitate how nursing homes and other like facilities handle and prevent such harms. In the state of Illinois, there is the broad Nursing Home Care Act that outlines what is required of homes and other similar services. In the act, there are requirements for the lifting of a resident, fixtures that should be available to prevent falls, and policies in place in the event of a fall or injury. When there is a violation or action that falls below the standard of care that has been set by the Nursing Home Care Act, which leads to an injury, that is when a resident should know what do to do and understand their rights.

It is critical for the both resident and family members to first seek to enforce their rights by reporting the injury the Illinois Department of Health, which is the primary agency for enforcement of the Nursing Home Care Act. If a violation is found, penalties can be levied against the nursing home, which range from fines all the way to suspension of the home’s license.

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President Obama recently signed a bill into law known as the SMART Act–Strengthening Medicare and Repaying Taxpayers Act. The passage of the measure was a bipartisan effort with Republicans and Democrats in both the Senate and House supporting the bill. That sort of joint effort to pass common sense legislation is rare in today’s toxic political environment.

What It Does

In general, the SMART Act is intended to make some changes to rules so that program participants receive the help they need in a quick fashion and to guarantee that taxpayers receive reimbursements when necessary for the cost of that care. These goals are met by streamlining the “Medicare Secondary Payer” system (MSP). The MSP is the system that seeks reimbursement to the Centers for Medicare and Medicaid Services (CMS) when those medical payments are the responsibility of a third party.

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Elder care is expensive. No matter which way you slice it, coming up with the funds for home care, a move to an assisted living facility, or enrollment in a skilled nursing facility is an immense challenge. This usually adds up to tens of thousands or even hundreds of thousands of dollars a year.

Seniors generally only have a few options. If they are of significant means, they may be able to pay out of pocket. However, this is out of reach for most middle class families. Alternatively, the senior may be able to take advantage of long-term care insurance. When secured early on, this insurance is a good way to insulate oneself from the immense costs that may be necessary down the road. One benefit of most insurance of this nature is that it pays for a wide range of care. Instead of being forced to move, those with insurance are often able to secure home care so that they can age in place. However, even with these benefits, the use of long-term care insurance is relatively uncommon. That is because few think about it until they are already in their golden years and/or in need of care. By that point, the premium cost of the insurance is usually prohibitive.

So what options do families have without insurance or a stockpile of private funds? For most the answer is Medicaid. Medicaid is a joint state and federal program for lower income individuals. Unlike Medicare, Medicaid pays for the cost of prolonged long-term care.

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The focus of most “tort reform” efforts relate to medical malpractice cases. Yet, nursing home residents and their families are well-advised to pay attention to those issues as concerns about medical negligence is sometimes an issue in nursing home case. When medical professionals like nurses and doctors do not follow proper standards of care in their dealing with residents in skilled nursing facilities, then medical malpractice may be at issue. This should be distinguished from acts of negligence that lead to falls, resident-on-resident attacks, and similar incidents which usually implicate ordinary negligence and not professinal negligence.

In all cases, however, those who care about the rights for recovery of those hurt by the misconduct of others should be concerned about the rise of “alternative” adjudication options which claim to streamline legal cases but actually do nothing more than slowly take away rights from community members.

For example, the Nashua Telegraph reported recently on another state’s supreme court ruling which mostly upheld the constitutionality of a “panel” hearing before medical malpractice cases. This panel is usually formed shortly after the lawsuit is filed. Unlike traditional court systems, there are lax rules during these panel hearings regarding witnesses and evidentiary admissibility. There are also much shorter timeframes, as the panel usually operates within a day, hearing the evidence, deliberating, and then issuing a ruling.

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Some estimates suggest that a staggering one in five seniors over the age of 65 have faced some form of financial exploitation. Sadly, the individuals most at risk of being taken advantage of are those who can least afford it–including seniors hit the hardest by the recession. This form of senior abuse is incredibly disheartening, and it is important for family, friends, advocates, and lawmakers to take the necessary steps to ensure these individuals are not kicked to curb by the unscrupulous and then forgotten about.

Sometimes the mistreatment does not stem from outright theft or fraud. Instead it is based on dangerous practices which, even if legal, involve manipulation of vulnerable individuals.

Reverse Mortgages

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The Center for Medicare Advocacy released new information to help explain the nursing home provisions in the recently passed federal legislation known commonly as the “Affordable Care Act.” The Act is actually a collection of two different pieces of legislation, each of which affects nursing home care throughout the country. It is important for anyone with a loved one currently receiving care in one of these facilities to understand the changes to best ensure that the care provided to your elderly friends and family is meeting the legal standards.

Overall, the reforms are focused on three areas: improving transparency of information about nursing homes, better targeting enforcement of the current nursing home laws, and improving staff training.

First, according to the new law, nursing homes are now required to make ownership information available immediately to appropriate government oversight groups. In addition, the Health and Human Services Department must include new information in the “Nursing Home Compare” section of their website to provide better tools for consumers to determine the best place to provide care to their friends and family. Other new transparency requirements include detailed reports of nursing home expenditures, a standardized complaint form, and new staff accountability reports.

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The new health care law has many benefits for the American people. One important group of individuals that are set to gain from the law is the elderly. The health care law contains a provision for $777 million that will be spread over the next four years. This money will be allocated for programs to prevent and prosecute elder abuse. The provisions mirror those that were contained in the Elder Justice Act, legislation that was backed by the National Center of Elder Abuse.

The New York Times is reporting that the nursing home legislation will give state and local adult protective service programs financing from the federal government. These agencies will then be better able to investigate reports of elder abuse and neglect. It will also tackle the ever pressing need to attack financial exploitation of elderly and disabled adults. This will happen because the nursing home legislation will finance 1,700 new investigators of elder abuse around the country. States will be given demonstration grants so they themselves may test various approaches of adult protective services. Also, the funding will allow for new state ombudsmen to be trained to investigate complaints related to these long-term care facilities.

Finally the nursing home legislation will create a new council through the federal secretary of Health and Human Services that will make recommendations on ways of preventing elder abuse. The Chicago nursing home lawyers of Levin & Perconti applaud this new legislation and the stance it takes on elder abuse. To read more about the nursing home legislation, please click the link.

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As part of the new health care system plan, Congress and President Obama have approved the Elder Justice Act and the Patient Safety Abuse Prevention Act. This will include Adult Protective Services (APS) funding that will provide $400 million in first-time dedicated funding for adult protection services. It will also provide $100 million in state demonstration grants in order to test many different methods that will improve APS.

The bill will provide $32.5 million in grants to support long-term care ombudsman programs. Ombudsman are vital to nursing homes because they are many times the first responders to nursing home abuse and neglect . For instance, the Illinois Long-Term Care Ombudsmen program helps to protect the safety and well-being of nursing home residents in Illinois by investigating complaints on behalf of residents and their families and also educating these groups on residents’ rights. There will also be an additional $40 million given to training programs for national organizations and State long-term ombudsmen programs.

The Elder Justice Bill will establish what is being referred to as the Elder Justice Coordinating Council that will make recommendations to the Secretary of Health and Human Services on the coordination of activities of federal, state, local and private agencies. They will also work with entities who relate in elder abuse, neglect and financial exploitation. Recently, this country has seen a great rise in the amount of elder financial exploitation cases.

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The U.S. Supreme Court has denied certioria in a case where the Third Circuit Court of Appeals said that a nursing home resident and Medicaid recipient may sue their facility under 42 U.S.C. § 1983 for violations of the Federal Nursing Home Reform Amendments (FNHRA). The plaintiff in the case was a nursing home resident and Medicaid recipient. After the victim wrongfully died her daughter filed a nursing home lawsuit against the facility under a §1983 action. The nursing home lawsuit claimed the facility violated the FNHRA by not providing proper care. The nursing home tried to commit the complaint by claiming that the FNHRA does not provide an enforceable right of action through §1983. They argued that FNHRA only sets forth requirements that a nursing facility must comply with in order to receive federal Medicaid funds. The district court did agree with the nursing home, and the victim appealed the ruling.

Luckily, the Third Circuit reversed the district court’s ruling and held that the FNHRA does give Medicaid recipients rights and remedies under §1983. Elder Law Answers reported that the appellate court reasoned that both as a nursing home resident and Medicaid recipient, the victim was an intended beneficiary of the FNHRA. The court believed that the language of the FNHRA laid out specific enforceable rights for victims of nursing home abuse. Recently, the U.S. Supreme Court denied the writ of certioria and rested on the Third Circuit’s ruling. They believe this will cause all nursing homes to rethink patient’s rights. The Chicago nursing home lawyers agree the rulings of both the Third Circuit and the U.S. Supreme Court and thank them for their support of nursing home rights.