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nursing home abuse

AARP Speaks Out on Alarming Proposed Changes to Nursing Home Regulation

At Levin & Perconti we continuously monitor changes to current federal and state nursing home regulations in order to inform our clients of how those changes might impact quality of care. Recently we were pleased to see one of the most powerful lobbying groups in the country, AARP, voice concerns about regulatory actions of the Centers for Medicare & Medicaid Services (CMS) in a letter to the United States Senate Committee on Finance.

Not Enforcing the Rules

nursing home reform

Latest Senate Hearing Shows CMS Can Do More to Protect Nursing Home Residents

On Wednesday, March 6, 2019 another government session, this time led by the US Senate Committee on Finance, was held to discuss several disturbing reports of nursing home abuse and neglect and the lack of preventative measures and faulty reporting system used by the Centers for Medicare and Medicaid Services (CMS) to create environments for quality resident care. The hearing was led by Chairman, Chuck Grassley (R – IA) and Ranking Member, Ron Wyden (D – OR) with special panelist testimony delivered by family members of residents fallen victim to nursing home abuse or neglect.

A Minnesota woman heartbreakingly remembered her mother, an Alzheimer’s patient who was raped by care staff. During the hearing she said, “My final memories of my mother’s life now include watching her bang uncontrollably on her private parts for days after the rape, with tears rolling down her eyes, apparently trying to tell me what had been done to her but unable to speak due to her disease.” A woman from Iowa shared her family’s concern after their mother died in a nursing home ranked with the highest possible quality of resident care scores from CMS even though the organization had been seriously fined for physical and verbal abuse. The elderly woman was allegedly left in severe pain and may have been dehydrated days before her nursing home death.

Justice for Veterans Served: Illinois Legislators Raise Claim Cap to $2 Million, Retroactive for Quincy Legionnaires’ Victims’ Families

Triggered in 2014, the misdiagnoses and poorly managed care of residents with Legionnaires’ disease claimed the lives of 15 veterans living at the state-run VA facility in Quincy over a two-year span. Because of the tragedies, a handful of advocacy groups and Illinois lawmakers have been working to prevent deaths like this from occurring again while proposing ways to seek justified claims on behalf of those who were lost due to the state’s negligence.

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.

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.

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.

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.

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.

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

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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