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New York Times’ Your Money columnist Ron Lieber recently gave his review of 4 books that he says his readers recommended in the wake of news that Medicaid might be drastically reduced.

The books, “Being Mortal” by Atul Gawande, “The 36 Hour Day” by Nancy L. Mace and Peter V. Rabins, “A Bittersweet Season” by Jane Gross, and “Being My Mom’s Mom” by Loretta Anne Woodward Veney all give honest accounts of the heartache, exhaustion, gut-wrenching emotional and financial decisions, and feelings of inadequacy that come with caring for a loved one in their final years.

Click here to read Ron Lieber’s reviews.

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An audit by the Inspector General’s Office of Health and Human Services has found that Illinois has the highest number of nursing home neglect, sexual abuse and physical abuse incidents. The report analyzed 2015-2016 emergency room records from hospitals in 33 states and found that among nursing home residents admitted as patients, 134 of them had injuries consistent with physical abuse, sexual abuse, and neglect. Even more alarming is that in nearly 40% of these cases, the incidents were not reported to local authorities, even though a more than 5 year old federal law mandates immediate reporting of injuries consistent with elder abuse.

The Chicago Daily Law Bulletin quotes the Inspector General’s report as concluding that the Centers for Medicare and Medicaid Services (CMS) “has inadequate procedures to ensure that incidents of potential abuse or neglect of Medicare beneficiaries residing in (nursing homes) are identified and reported.” If Medicare is found guilty of not reporting a known case of nursing home abuse or neglect, federal law allows for a fine of up to $300,000. Despite this deterrent, Medicare has still allowed a shocking number of cases to go unreported to authorities.

Although a statement by CMS says that they are committed to protecting the elderly and investigating all incidents, nursing homes are still able to avoid punishment over allegations of abuse and neglect by falsification of records, intimidation and scare tactics to deter employees from becoming whistleblowers, and saying they’ve removed employees found guilty of infractions. Until there are harsher penalties passed down by CMS onto nursing homes for failure to report these incidents, the cycle is destined to continue.

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The son of a woman whose body was found 9 months after wandering from The Wesley Residence nursing home in West Duluth, Minnesota has finally received justice. In 2013, Mark Gerard’s mother, Dale Gerard, was 74 years old and suffering from dementia, as well as behaviors that were considered aggressive and dangerous to herself. She was considered to be at risk for wandering, so much so that she was required to be accompanied both inside and outside of the facility and wore a device called a WanderGuard. A WanderGuard is designed to alert staff when a resident has left their room or designated space.

In July 2013, Ms. Gerard disappeared from The Wesley Residence. 9 fruitless months of searching went by, with the police calling on the public for help in locating her. In April 2014, her mummified body was found caught in a fence just 3 miles from the nursing home.

Nursing Home Admits Liability

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A class action lawsuit has been filed in Connecticut against the government, citing Medicare’s observation status rule as being an unfair policy that has dwindled the life savings of many. Observation status is when a hospital classifies a patient as such instead of as an admitted inpatient, a distinction meaning very little in terms of the care provided. An admitted patient is also able to receive nursing home care after discharge according to Medicare. In order to be able to receive nursing home coverage, an admitted patient must be treated for 3 nights at a hospital.

Unlike a patient classified as ‘admitted’ to a hospital, hospital charges for those listed as observation status are filed under Medicare Part B, which requires a monthly premium payment, an out of pocket payment until a deductible is met, as well as a 20% copay for all Medicare-approved services. Nursing home care after discharge is not covered under Medicare for patients classified as observation status. If a patient has not enrolled in Medicare Part B and is listed as observation status, that patient has to pay the entire hospital bill out of pocket.

The class action, filed by the Center for Medicare Advocacy, seeks to give patients the right to appeal observation status, a right that is currently not afforded to Medicare recipients. The suit asks that interested patients who were listed as observation status from January 1, 2009 on be eligible for inclusion in the class.

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Congress and our fellow citizens are not the only ones urging the federal government to reconsider its approval of pre-dispute arbitration clauses in nursing homes. On August 8th, Illinois Attorney General Lisa Madigan joined 16 other Attorneys General in submitting comments to The Centers for Medicare and Medicaid Services (CMS), the government organization that just last year fought for a ban on arbitration clauses. After the American Health Care Association successfully brought a lawsuit to block enforcement of a ban, CMS has done an about-face and has decided to now voice its support for pre-dispute arbitration clauses.

Arbitration Clauses: A Strong Arm Tactic 

As we’ve covered extensively in this blog, arbitration clauses are in the best interests of the defense, forcing an injured victim and their loved ones to forgo their 7th amendment right to a jury trial. Asking someone to agree to settle grievances out of court before they even happen is like asking someone how they would respond in a hypothetical situation that they could never imagine finding themselves in. No one ever entrusts their loved one to a nursing home with the expectation that they will face abuse or neglect, but the reality is that these incidents are occurring with alarming frequency. Allowing nursing homes to use arbitration clauses as a condition of admission is a tactic that allows wealthy nursing home owners to pick a ‘negotiator’ who will help reach a settlement that historically is in the best interests of the nursing home. The injured party rarely receives fair compensation for tragedies such as medication errors, falls, bed sores, sexual abuse, and other horrific forms of nursing home abuse or neglect that result in injury and even death.

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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.’