Will Relaxing the Rules Make Nursing Home Residents Safer ?

Can we trust profit driven corporations such as long-term care facilities to do the right thing, the safe thing, if not required to do so?

Last November in the wake of the natural tragedy of Hurricane Irma (see my blog- Keeping Our Seniors Safe During Natural Disasters – The Time For Congress To Act Is Now!) we learned even with the emergency preparedness rules, some nursing home weren’t prepared and horribly neglected those they promised to care for . Who could forget those news reports of seniors suffering for days without air conditioning in the Florida heat?
The Centers for Medicare and Medicaid Services ( “CMS”) are proposing broad changes to the emergency preparedness requirements for nursing homes. In the best light these changes are designed to cut red tape and ease the burden on nursing home and will clear the way to focus on meaningful and effective policies without expensive duplicative procedures. But advocates for seniors are concerned –why are we looking to ease the responsibility on the companies that we are entrusting the care of our loved ones to?Why cut corners and take short cuts when planning for the next disaster? We already know more often than not that these facilities, filled with the elderly, ailing or disabled are dangerously understaffed. Do these changes create a scenario of understaffed AND unprepared?

Here’s a quick look at the proposed changes:

• Emergency Program– This change gives the facilities the option to review their emergency program every two years. Our world and climate are constantly changing. Natural disasters manifest in dramatic and unprecedented ways. We are also faced with dangerous and life threatening acts of human behavior and violence daily. In an environment that is so rapidly changing neglecting a regular and diligent practice of review and assessment is dangerous.
Emergency Plan– This change would eliminate certain documentation requirements. As a nursing home negligence attorney I know that documentation is paramount. In the event of injury, documentation is critical in proving your case. Proper attention to detail and documentation of efforts, does not take away from care, it enhances it.
Training– The proposal is intended to give facilities greater flexibility in requirements, requiring only annual training. Really? Only one training opportunity for staff that may have zero background in emergency preparedness?
Testing- I.E. Real Life Practice! The proposal seeks to require only one full scale community drill. That means the staff and residents have only one opportunity annually to practice a procedure that in an actual emergency could mean life or death.

Ultimately it has been my experience that unprepared and untrained employees are the weak link in an organization, especially a nursing home. We should not offer these companies more shortcuts when the price is so high. Those taking care of our loved ones cannot be prepared and trained enough and we should not ease up on regulations . See https://www.cms.gov/newsroom/fact-sheets/medicare-and-medicaid-programs-proposed-regulatory-provisions-promote-program-efficiency-0

( It is Not You) … Nursing Homes Have Been Lying About Their Staffing for Years

It is not just you!

When you go visit your mom in the nursing home, and you cannot find any nurse’s aides or nurses to help take her to the bathroom, you may wonder if the facility is understaffed, or is it just you.
It is a fact that nursing homes are understaffed and have been for years. Based on payroll records from 14,000 nursing homes, nursing homes had far less staff on duty than previously reported. And the government’s Medicare Nursing Home information contained in the Star Rating system has been manipulated by homes to hide their staffing shortages. There were huge fluctuations in every day staffing. On the lowest staffed days, staffers cared for almost twice as many patients as they did when the staff was at its maximum level of. In one nursing home in Ithaca NY, on some days, there was only 1 aide to care for 18 residents instead of caring for just 8 residents. Many homes had a five-star rating based on false information about the amount of staff that was working.
When nursing homes are short-staffed, the staff that is there is
• helping residents to the bathroom
• delivering meals
• getting the right pain medications to the right residents
But, medical tasks “such as re-positioning a patient to avert bedsores can be overlooked …. sometimes leading to avoidable hospitalizations.”
With this new emphasis on payroll records to verify staffing, the Centers for Medicare & Medicaid will be lowering the ratings on all nursing homes, that do not comply.
The fact is that short staffing results in poor care, so beware and arm yourself with staffing information. If you have a loved one in a nursing home and feel that he/she isn’t getting the care they need, call the Nancy C. Iler Law Firm at 216-696-5700, and ask for me.

Toledo’s newspaper The Blade quotes Nancy Iler in recent article on Nursing Home Abuse


Toledo’s newspaper The Blade did an important article on state inspections and the nursing home rating system. Attorney Nancy Iler was quoted and contributed her opinions on this important topic. Read the entire article here http://www.toledoblade.com/local/2018/06/15/Inspections-rate-three-nursing-homes-in-Lucas-County-as-lowest-overall-score(copy).html

Is the Trump Administration Making Nursing Home’s Unsafe?

Will the Trump Administration’s decision to scale back federal regulations that govern nursing homes affect the safety of our seniors? Government regulation can make our lives safer and that is certainly true in the nursing home industry. Regulations put into place years ago have worked to make nursing homes accountable for a minimum standard of care that families and the public can rely on , but that may be changing . In response to increasing pressure from the nursing home industry, the Trump Administration is rolling back the frequency and severity of fines levied against nursing homes found to be in violation of regulations. These are the bad nursing homes, ones that do not abide by the regulations in place for many years . Why do we want to protect them ? Aren’t monetary fines one way to be accountable?

In October of 2016, the Obama Administration, issued a Final Rule which revised the requirements that Long Term Care Facilities had to meet to participate in Medicare and Medicaid programs. This was the first comprehensive review and revision of standards in over two decades.

The nursing home industry opposed these requirements from the get go. The industry won on November 24, 2017, when the Center for Medicare and Medicaid Services (CMS) made it clear it would not be imposing monetary penalties for several of the new requirements.

According to the Center for Medicare Advocacy, these actions will put residents at an even greater risk of harm. For example, in September 2016, health inspectors faulted Lincoln Manor, a nursing home in Decatur, Illinois. The nursing home, over a period of eight days, failed to treat the wound of a patient whose implanted pain-medication pump gradually slipped through a ruptured suture in her abdomen. The patient died. Lincoln Manor was fined $282,954. An Administrative Law Judge called the penalties “quite modest” given the “appalling” care. If the fines had been issued in accordance with the November 2017 decision by CMS, the maximum fine Lincoln Manor would have paid is $21,000.

Advocates for the industry claim reducing fines and regulations will allow more time and resources for residents but are the potential risks to the safety of our elderly really something we should risk?
We shouldn’t let the “fox guard the hen house” and regulations work to ensure that nursing homes do right by our seniors. I see too much nursing home abuse in my practice, pressure ulcers, falls and assaults by both staff and other residents. Shouldn’t the government be helping us take the best care of our families and one way is to enforce the regulations governing nursing homes .
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So you and your family have made that difficult decision to move mom or dad out of their home into an assisted living facility, so your job is done? Nope. Assisted Living Facilities ( ALF) have become the answer for many adult children looking to provide a safer version of home for their aging parents. Many families are finding out these facilities, no matter how high the cost, are not equipped to handle all the needs of their loved ones. Families are often still spending considerable time and resources coordinating medical care, arranging appointments, fretting about medications and driving to doctor visits. Really, assisting the assisting living facility? The traditional model of Assisted Living Facilities is not meeting the needs of our parents’ generation who are living longer, with more complicated medical needs, but still yearn and are equipped for maintaining some of their independence.

Thankfully, there is some good news to report. A few innovative providers are beginning to incorporate the traditional assisted living model with medical management. For example, at a senior living organization in Minnesota, residents can get primary care from on-site nursing care practitioners who conduct ‘house calls’ to residents’ apartments. During off-hours, assisted living staff have access to consultation with the medical team, lessening the number of visits to the emergency room by residents.

As we continue to look for the best possible living situations for our aging loved ones, we need to start asking the right questions. In kind, hopefully, more facilities will start responding.

Here are four questions to keep in mind:

1. Under what circumstances will I need to hire help in addition to what’s included in your fee?

2. How do you prevent unnecessary hospital visits?

3. If my parent needs to be admitted into a hospital, how do you ease the reentry to the facility?

4. How will you spot my parent’s health problems early and communicate concerns with me?

So families must continue to be involved with their family members health and medical care needs even in an ALF . Managing your expectation is important and good and consistent communication with the staff will go a long way to keeping your family members healthy. The types of elder abuse I see in my office often have to do with ALF not transferring residents sooner once medical problems arise or get serious. So be aware that if your loved ones health begins or continues to decline , their needs may require more that the ALF can manage and skilled care in a traditional long term care facility maybe the best

Reference Links:  https://www.forbes.com/sites/nextavenue/2017/11/07/where-is-the-assistance-in-assisted-living/#4f5ba1a63cca

Keeping Our Seniors Safe During Natural Disasters – The Time For Congress To Act Is Now!

We were all shocked and horrified at the news weeks ago, that residents of a nursing home in Hollywood Florida died because there was no air conditioning after hurricane Irma. I couldn’t believe the reports that there was no backup generator and that the administration at the facility would not make the safety of the residents their number one priority. Their failure to act and protect caused the horrific death of several elderly, sick and defenseless people. I am encouraged that this got the attention of a few senators and they are looking to do something to prevent this in future.
Several senators have spearheaded a bill that seeks to address the terrible neglect of seniors during natural disasters such as the recent hurricanes that blew through Texas and Florida in September. Nine seniors died when Hurricane Irma knocked out electricity in a Florida rehabilitation center with no back-up generator to power the air conditioning. In Texas, Hurricane Harvey caused flooding that left some assisted living residents in knee-deep water.
The Protecting Seniors during Disasters Act is being introduced by Senators Marco Rubio (R-FL), Bill Nelson (D-FL), Susan Collins (R-ME) and Bob Casey (D-PA). All are members of the Senate Special Committee on Aging. Rubio commented that the tragedy in Florida “exposed….potential mismanagement at assisted living facilities in the state.” The 15-member proposed panel would offer advice concerning how to prepare and care for older adults during emergency situations.
The bipartisan bill would amend the Public Health Service Act to require the secretary of Health and Human services to establish a National Advisory Committee on Seniors and Disasters composed of federal and local agency officials, as well as non-federal healthcare professionals with expertise in disaster response. The legislation is headed to the Senate Committee on Health, Education, Labor and Pensions for consideration.
If it passes, the panel would be charged with providing guidance on how to better prepare seniors for “all-hazards emergencies,” how to most effectively evaluate their health needs during such emergencies and how to determine what activities should be carried out when such emergencies are declared.
In a separate measure, Florida Governor Rick Scott recently issued emergency rules requiring assisted living communities and nursing homes to obtain generators and enough fuel to enable them to sustain operations and maintain a temperature of no higher than 80 degrees for at least 96 hours following a power outage.
Emergency relief workers stress the need for evacuation plans to consider a storm’s size and severity, as well as the ability of buildings to withstand wind and storm surge. Also, the recommend that facilities should be built to enable sheltering in place, in case doing so is necessary, and they should not be built where regular flooding is a risk.
We cannot leave the emergency care and rescue of our seniors in nursing homes and assisted living to chance, we need to ensure the law requires nursing homes and assisted living facilities to have a plan , I am going to be watching to see if these senators do right by our seniors and taking action to prevent elder abuse

It is Never too Late…..to Reduce Your Risk of Dementia

My practice focuses on abuse and neglect in nursing homes and one of the reasons for placement in nursing homes is a family member with dementia . In 2015, 47 million people were living with dementia. This number is projected to triple by 2050. We should all be interested in reducing our risk of dementia so we can age at home instead of in a nursing home. And putting aside the human cost of this diagnosis, the global cost of dementia in 2015 was close to $818 billion.
A recent study gives us some concrete steps to reduce the risk of dementia , at any age. According a study published by The Lancet Journal diet and exercise are key as this diagram shows

There are steps that can be taken at every age to reduce dementia risk:
• Early in life- increasing education
• Midlife – address hearing loss, high blood pressure and obesity
• Late in life- stop smoking, treat depression , increase social contact, stay active, and treat diabetes
Did you see that?……. Making changes even late in life makes a HUGE affect on reducing the risk of dementia. Researchers found that the changes made even later in life can reduce the risk of dementia by 15
The researchers also found that social contact and activities worked better than medications, antipsychotic drugs at treating agitation and aggression found in early dementia patients.
So, what happens if dementia hits?
Family members are usually the first line of support as substitute decision-makers. Parent-child roles reverse. Partner relationships change and tensions and responsibilities increase. So do dangers of elder abuse. This can be verbal or psychological abuse; neglect (including allowing self-neglect) such as ignoring medical or physical care needs; failure to provide access to health or social care; and withholding the necessities of life.
Contributing factors to elder abuse are many. Sometimes the caregiver needs care too. About 40% of family care givers have depression, anxiety or some form of severe psychological symptoms. They have worse physical health and lower quality of life.
What can help?
So now it is never too early or too late to reduce your risk dementia but don’t let your planning stop there, make sure you have the necessary documents prepared in advance. Consider who you would trust to make life decisions on your behalf. Decide how you want to be cared for; have advance care planning in place that may include end-of-life care. Don’t wait until it’s too late and someone else makes the decisions for you.
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Who is “ Assisting” at Assisted Living Facilities and…… Is It Enough?




Assisting living facilities are a popular alternative to the traditional nursing home and the number of facilities  opening here in Ohio and around the country are growing fast. But is this tread good for our seniors?  The biggest danger is, are they staffed with enough well-trained personnel? A recent article highlighted this concern.

Hina Shah of the Coalition for a Fair and Equitable Caregiving Industry released a new report that shows the changes needed including

  • mandated staffing ratios,
  • inspections and enforcement, and
  • licensing, including mandatory wage and hour compliance training.

All of this would improve the quality of care for residents and the working conditions of the caregivers.

According to Shah’s report, 53% of the state’s (California) Residential Care Facilities for the Elderly, residents are aged 85 or more years, 40% have Alzheimer’s disease or dementia and 39% have cardiovascular disease.  Nationally, those numbers indicate 40% have Alzheimer’s disease or dementia, and 46% have cardiovascular disease.  I have no doubt Ohio’s numbers are comparable. So these residents need well trained caregivers and enough caregivers to keep the residents safe and cared for.

What working conditions need changed for caregivers?  Ms. Shah’s report highlights some their challenges:

  • Caregivers are understaffed and overworked. Live-in caregivers do not get sufficient sleep because many work in 24-hour shifts;
  • There is a lack of dignity and care. The work is physically demanding and many caregivers succumb to chronic stress, anxiety, loneliness and/or other mental health problems.  Grief counseling when dealing with the death of the resident is rarely provided, if at all;
  • Wage theft. When caregivers are required to work around the clock for a flat rate, many times the hours worked calculates to less than minimum wage; and
  • Miscalculation as independent contractors.

What About Ohio?

The challenge, and in some cultures the privilege, of caring for seniors is something most everyone will face in their lifetime.  So how safe are Ohio’s assisted living and skilled care centers?  Take a look at the Ohio Attorney General’s 2016 Ohio Medicaid Fraud Control Unit report covering the period between July 1, 2015 and June 30, 2016.  As of June 30, 2016, there were a total of 1,333 open investigations.  The highest number of investigations were opened in the categories of Nursing Facilities with 104 open investigations and 97 completed; Personal Care Services Attendant with 153 open investigations and 173 completed; and Home Health Agency with 116 open investigations and 85 completed compared to Assisted Living Facilities with 12 open investigations and 22 completed.  It has been my experience that most cases of neglect happen as a result of not enough staff or inadequately trained staff, so these proposed changes can only improve care for our seniors. The real issue will be can these necessary changes be enacted in the face of a resistant long-term care industry?

Reports like these are scary, for seniors and their  families trying to make difficult placement decisions. But being aware of the fact that good , safe care in assisted living facilities is dependent on well-trained  and sufficient numbers of staff, will give you questions to ask when investigating assisted living facilities

Don’t Look Now, There Goes Your Rights! Seniors Beware!

While we have all been glued to the news lately on the repeal and replacement of the Affordable Care Act, we should really be watching the dangerous roll back of regulations affecting our seniors. It could be your parent or even you someday that suffers as a result of changes the government has signaled it intends to enact.
Specifically, the Trump administration has indicated it wants to eliminate a recent ruling which banned the use of pre-dispute arbitration agreements that residents can be asked to sign upon entry into a nursing home facility. In other words, the government wants nursing homes to be able to eliminate a resident and his/her family’s ability to sue a nursing home for neglect, abuse and mistreatment, any of which can lead to death. Holding wrongdoers accountable is a cornerstone of our court’s system and a right to trial by jury is guaranteed by the 7th Amendment to the Constitution.
By residents waiving rights to due process and everything that the judicial system offers, they are at an extreme disadvantage, and nursing homes know this. It opens the door to something close to impunity, or at least, severely mitigated risk and damages, should the nursing homes neglect their residents.
Typical nursing home claims involve injuries caused by the carelessness of caregivers, and inadequate staffing and resources. These injuries can involve bed sores that can lead to lethal infections, choking, sexual assault, renal failure and other conditions caused by dehydration, malnutrition, burns, gangrene, painful and immobilizing muscle and joint problems resulting from long-term inactivity, among many other potential forms of harm. These avoidable conditions can be the result of negligence or willful misconduct by long-term care facilities.
Presenting these binding arbitration agreements is a step nursing homes take during the admission process, which is a very difficult and stressful time in families’ lives. Individuals usually feel compelled to sign the agreement because they are under pressure to be admitted, and the implied message is that they will be refused care if they don’t agree to sign the document. Requiring residents to give up their rights in order to receive care is unfair by anyone’s standards.

Arbitration is unfair because it stacks the deck against residents by usually allowing the nursing home to select both the arbitrator and the rules for the arbitration process. Arbitrators have a strong incentive to find favor with the facility since this will ensure their continued employment. Ultimately, residents will lack the ability to hold a nursing home accountable for mistreatment and harm. This also enormously limits any penalties imposed for wrongdoing. Additionally, the proceedings are confidential, so the public will never know of a nursing homes’ true track record. We all lose when wrongdoers are not held accountable and bad nursing homes stay in business undeterred by the court system.
Full disclosure is the best deterrent for substandard care, along with the elimination of pressured consent to signing arbitration agreements.

Since we all have skin in this game, it should stay on your radar.

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