State Takes Strong Action on Elder Abuse: Numbers Don’t Lie, but Nursing Homes Did!

Balancing The AccountIf a nursing home doesn’t have enough nurses and aides to provide basic care, such as bathing and turning to prevent pressure ulcers, then residents suffer. It’s a simple truth. This isn’t a new concept. But one state has found a novel way to hold a large nursing home chain responsible. The state has taken action on elder abuse by suing the chain for fraud. Specifically, the state intends prove the facility accepted money for care it didn’t provide.

New Mexico’s attorney general, Hector Balderas, has used a tool from industrial engineering to prove that nursing homes couldn’t be providing the care for which they’re charging the government. His team utilized time and motion studies to show how long it takes to perform individual basic care activities. They timed staff bathing, feeding, and repositioning a resident. They then compared these times to the actual care required by residents of several nursing homes owned by the same corporation. The numbers didn’t add up. It was physically impossible for the staff to have given the care the nursing home billed.

Attorney General Balderas has sued the nursing home corporation. He claims fraud on the grounds that it lied when it billed for care it couldn’t have provided. Balderas told NPR, “These are companies that profited and made hundreds and hundreds of millions of dollars in revenue,” and the state paid for the majority of this care via Medicaid.

This groundbreaking action on elder abuse has the nursing home industry taking notice. The trial lawyers defending the nursing home claim it complied with federal regulations. Those regulations require only 2.5 hours of nursing care per patient per day. But the state has responded that those regulations are just a minimum, and the argument may not be enough to overcome the allegations that the nursing home billed for care it did not provide. This is a case to watch!

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How to Evaluate and Choose a Nursing Home

how-to-find-best-nursing-home-215x215Choosing a nursing home for an elderly loved one is a tough process full of big decisions for your whole family. From my professional perspective in both nursing and law, here are the top three considerations that can help you make the right choice:

1. Research the facility’s reputation

Your very first stop, in my opinion, should be the Nursing Home Compare website run by the US Center for Medicare and Medicaid Services. About a year ago, CMS made some sweeping changes to improve its rating system on this website (here’s a summary of those changes). You should also ask the nursing home if it does criminal background checks on prospective staff. And make sure to review your legal rights as a patient or caregiver.

2. Ask about specialty services

Every resident has different medical and lifestyle needs. What’s most important to your parent or loved one? Maybe you’re worried about your mom wandering out of her room because of her Alzheimer’s. Maybe your biggest concern is the availability of diabetes-friendly menus and blood sugar monitoring. Or maybe you want to make sure your dad gets his dialysis treatments in-house instead of being transported to another facility. Ask the nursing staff about how they handle the necessary special services.

3. See the place for yourself

Research and questions can only get you so far. The best way to know whether your loved one will be comfortable and well cared for is to visit the nursing home. Meet the staff and caregivers—taking time to speak with everyone from housekeeping staff to nurses to other family members will give you a fuller picture than the one you get from the admissions staff. Taste the food during mealtime, walk the halls, and talk to other people you meet. Observe how residents pass the time, and whether they look content. Would you trust your own care to this place?

P.S. Once you’ve done your research, be sure to thoroughly read the contract before you commit! I’ve been talking a lot lately about mandatory arbitration in the context of nursing homes. The best way you can protect your family is to be prepared. You might want to take a look at my tips for handling arbitration clauses when you’re reviewing an admission contract.

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Is the Nurse Taking Care of Mom a Criminal?

Criminal background check application form

When you entrust your loved ones to caregivers, how can you know whether they’re in safe hands? There’s no way to be sure unless the nursing home followed both state and federal law and conducted caregiver criminal history checks when hiring new nurses and aides.

The Importance of Background Checks

Our elderly — especially those in nursing homes, hospice, and home care settings — can be vulnerable and frail. This makes them potential targets for abuse and exploitation. To help ensure some measure of safety for our seniors, state and federal laws require background checks for many healthcare workers.

Statewide background checks are typically conducted by the state law enforcement agency. They include information for crimes committed within that particular state. For an FBI background check, a state law enforcement agency provides the FBI with an individual’s identifying information and fingerprints. Then the FBI checks the person against its criminal background database, which includes information on both federal crimes and state-reported crimes form all states.

But are employers at nursing homes, hospices, and assisted living facilities complying with these requirements? Should there be improvements?

How Federal Funding Can Help

The Patient Protection and Affordable Care Act (widely known as the ACA, or Obamacare) granted money to states to institute background check programs for potential employees who provide bedside care to patients in several types of long-term-care settings. The program has three parts: obtaining legislative authority to begin a program, collecting background data such as fingerprints, and continuously monitoring criminal history data.

The US Department of Health and Human Services recently published an interim report on the National Background Check Program for Long-Term Care Employees. During the first four years of the program, the results are a mixed bag. Twenty-five states received grants. Yet only six states submitted sufficient data to determine how effective the background checks were at weeding out questionable hires. The report goes on to say that another eight states submitted insufficient data and eleven states submitted no data.

Measuring Progress in Ohio

How did Ohio fare with caregiver criminal history screening? Ohio’s grant began in April 2013. So far, our state has enacted legislation to conduct background checks and instituted the ability to collect fingerprints. Ohio has only used 45 percent of the funds provided by the grant. Disappointingly, Ohio was not a leader in reporting its data to the Office of Inspector General.

We can and should be doing better. Ohio has taken the first important steps, but we need to follow through. What could be more important than ensuring that the people taking care of our family members aren’t criminals?

Is that signature legal? One way to override nursing home arbitration clauses

elderly signing docArbitration is becoming quite the hot topic in the news because it is such a bad deal for consumers. Just three days after I posted FAQs about nursing home arbitration cases, the New York Times published yet another article on the topic.

It’s the story of an elderly woman who was physically attacked and killed by her nursing home roommate. The home had previously described the roommate as “at risk to harm herself or others.”

More than six years have passed, but the victim’s family is still struggling to hold the nursing home accountable. So what’s the holdup? A clause in the contract requires this case to go to arbitration, where there’s no judge, no jury, and no public scrutiny.

The family quickly became disillusioned with the arbitration process. Their legal team discovered that the private firm running the hearing had previously represented the nursing home company hundreds of times. How could it possibly be impartial?

A court will finally hear the case next month. It turns out that one critical argument rests on who signed the contract and whether they had the proper legal authority to sign for the resident. The victim’s son had signed admission papers on her behalf. At the time, he was her health care proxy (for medical treatment decisions), but he did not hold power of attorney to bind her to a legal decision. So his lawyers have been arguing — successfully — that he didn’t have the authority to bind his mother to arbitration.

The victim’s family hopes this case will set a precedent for other families stuck in the nursing home arbitration process. So beware and be warned: Arbitration clauses are bad for consumers. They will rob you of your day in court. If you’re in a similar situation, I’d love to discuss your legal options with you.

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When Arbitration Clauses Fail . . . You Win!

signing docsWhat do nursing homes owners fear most? A panel of eight citizens hearing a case of nursing home abuse and neglect. That’s why they try to keep themselves out of court by enforcing nursing home arbitration clauses.

What is arbitration?

Arbitration is a way to settle disputes; it’s an alternative to bringing cases before a jury in a courtroom. Arbitration began as a way for similarly situated businesses to quickly resolve disputes without filing lawsuits and going to court. This worked because corporations had the same bargaining power, had access to lawyers, and were familiar with routine practices within their industries.

But in the last few years, corporations have been using arbitration against consumers. Just about every consumer contract — like phone service, credit cards, and lately nursing homes — contains arbitration clauses. In fact, the subject of arbitration clauses in consumer contracts has been the subject of a recent series in The New York Times.

What does an arbitration clause look like?

A typical clause can sound as harmless as this: “Any controversy, dispute, disagreement, or claims of any kind arising between the parties after the signing of this document in the resident or their family claims a violation of any of right of the resident shall be settled exclusively by binding arbitration.” But the consequences of signing and agreeing to such a clause will affect the value of your entire dispute and the rules by which you can present a claim.

You’ll frequently find these “dangerous” clauses buried in the Admission Agreement, which is often many many pages long. The admission process is a stressful time for residents and their families, so why would a nursing home present a stack of legal documents for signature? One reason might be that they’re trying to hide something — like an arbitration clause. I find it hard to believe that residents would knowingly give up their right to have their case heard by a jury in favor of a panel of corporate lawyers. Residents and families often sign such agreements without full knowledge of the consequences.

Is arbitration fairer and quicker?

No. My practice has seen an increase in nursing home companies trying to prevent families from bringing neglectful care disputes to court. Instead of a jury of ordinary citizens, the corporations that own nursing homes want disputes heard by lawyers who often have worked for the long-term care industry. And they want those disputes heard in a forum where the rules of evidence and powers of the court do not apply.

Nursing home arbitration clauses deny residents the option to have a jury hear their cases. Why would a nursing home want to avoid a citizen jury in cases of nursing home neglect and abuse? The answer is money — isn’t that always the case? The long-term care industry’s own research shows that in cases of proven neglect, jurors deliverer higher-dollar verdicts than arbitration panels would award. Arbitration panels are usually stacked with corporate lawyers who have served the nursing home industry.

Can signing nursing home arbitration clauses be a condition of admission?

No. Ohio law is clear on this: A nursing home cannot force you to agree to arbitration to be admitted. So be educated and be aware! Make sure to look for such a clause in your paperwork. If you find one, you can choose to cross it out and refuse to sign that clause. You will be surprised when the admission director says nothing or agrees.

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How Increased Therapy Can Benefit Hip Fracture Patients

walking with walkerIf you’ve ever had a broken bone, you know it seems to take forever to heal. Hip fractures are even worse — they usually require recovery time in skilled nursing facilities. While there, patients receive the rest and physical therapy they need to get back on their feet. But certain physical therapy limitations might be infringing on nursing home patient rights.

Caregivers have long assumed that beyond a baseline level, adding more therapy doesn’t improve outcomes. And the Affordable Care Act reinforces that idea. As the ACA puts more scrutiny on billing, nursing homes are attempting to avoid the appearance of exploitation by prescribing only the minimum level of therapy.

But for the first time, a new study in Physical Therapy challenges those ideas. The study found that hip fracture patients who receive just one extra hour of therapy per week are 3.1 percent more likely to successfully leave the hospital.

Researchers from Cornell, Brown, and Harvard universities conducted the study. Together they hope to encourage legislators to think twice before cutting therapy services. The authors agree that it’s good to reduce the costs of post-acute care. But they say it’s critical to to base policy changes on strong evidence.

As an advocate for nursing home patient rights, I feel encouraged by these findings. Learn more about the research on the Cornell website.

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Can a Hospital Admission Be Bad for Your Health?

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Most of us view the hospital as a place of healing, not a place of harm. But the truth is that readmission to the hospital from a nursing home increases — in fact doubles — the likelihood of death. So how can going back to the hospital be dangerous to your health?

In a study conducted at the University of Colorado School of Medicine (in the January 2016 issue of JAMDA, the Journal of Post-Acute and Long-Term Care Medicine), researchers found that patients who were hospitalized, discharged to a nursing home, and then readmitted to the hospital within 30 days doubled their risk of death.

Why? Money could be the culprit. Our healthcare payment system rewards hospitals for early discharge and does not penalize them for readmissions from nursing homes. If hospitals discharge patients before they’re ready, then nursing homes are acting as hospitals without proper resources.

The researcher suggested that better coordination between hospitals and nursing homes would improve this dangerous situation. So, armed with this information, what can we do when we or loved ones enter the hospital? We should ask questions about the appropriateness of discharge. We should ask whether follow-up care is necessary, and whether that care best suits a nursing home or a continued stay in the hospital. And we should continue to stay informed as patients and healthcare consumers.

Interested in more ways to advocate for your well-being? Here are a few nursing home practices you should question.

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Help Spread the Music: A Fundraiser for Music & Memory

Nursing homes can be incredibly lonely and isolating. And so can Alzheimer’s and other forms of dementia. Living with the combination of the two, all too many long-term care residents retreat into themselves, becoming silent and unresponsive.

But there is some incredible research that is making a difference in nursing home resident’s lives; one tune at a time! Neurological research has proven that music is one of the most powerful ways to bring people back to life and revitalize their joy and connections with the world.

The Power of Personalized Music

Music is an incredible memory cue. Every time we hear certain songs, we’re transported back in time—to that summer of fun in high school or our first date or a song played at our wedding. When that tune starts we can remember every word of a song we haven’t heard since we had pimples!

Even for people with severe dementia, music can tap deep emotional recall. Studies have proven that music can reduce pain, agitation, anxiety, sleeplessness, and depression. But the most compelling benefits in people with dementia can be joy and connection. Familiar music sparks associated those cherished memories, which can “awaken” the person for a time to connect and even converse with loved ones. They may even start singing out loud!

Improving Lives in Long-Term Care

That research is the core principle behind Music & Memory, a nonprofit organization dedicated to bringing joy into the lives of people who have cognitive impairments like Alzheimer’s. The organization works with care facilities to create personalized iPod playlists that bring smiles to patients’ faces.

You might have seen the April 2012 documentary about this work, called Alive Inside: The Story of Music and Memory. One of the most powerful moments was this video clip of Henry:

How We All Can Help

Caring for my own aging relatives has made a special place in my heart for seniors in long-term care facilities. So my firm is hosting a fundraising drive for Music & Memory. Whether you donate a gently used iPod or funds for new iPods and songs, it will all go directly to certified Music & Memory care facilities whose staff are trained to create personalized music Alzheimer’s patients will enjoy.

Click here to learn more about donating. Thank you for your support!

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Know Your Rights: What Nursing Homes Can’t Do

knowledge-is-powerWhether you’re looking for a nursing home for a loved one or trying to evaluate a home where a loved one is staying, it’s helpful to know the “rules” that the nursing home must play by. A nursing home must uphold specific standards of care for people who reside there. But it’s equally important to become familiar with what the law prevents them from doing. Families for Better Care has recently written a great guide about things nursing homes cannot do. I’ve summarized a few nursing home resident rights below. This knowledge of the “rules” will help you protect yourself or your loved ones during a stay of any length in a skilled nursing facility.

Nursing homes can’t discriminate. Federal law prohibits skilled nursing facilities from turning down residents based on race, color, religion, age, sex, or any other protected characteristic.

Nursing homes can’t charge up-front. Some types of retirement homes, like assisted living, may require large deposits before moving in. But skilled nursing facilities may not charge these fees.

Nursing homes can’t guess about health. Staff members must give health assessments to all residents every day. These assessments cover everything from physical and mental health to self-care and decision-making abilities. They’re an important basis for determining treatment plans and Medicare eligibility.

Nursing homes can’t confiscate financial control. Regardless of their mental state, residents cannot be required to relinquish control of their finances. They may give written consent to allow nursing homes to manage their personal funds. But in return, they must receive quarterly statements and access to their accounts.

Nursing homes can’t restrict human rights. Federal law protects residents’ right to be treated with dignity and respect. This means that within the reasonable limits of their care plan, residents can make their own decisions. This includes bedtime and meals, privacy and personal property, visitors and interpersonal relationships.

Nursing homes can’t hide the truth. Nurses may want to sugarcoat bad news when talking to someone who’s in poor mental or physical health. But that’s not technically legal; all nursing home residents have the right to know their true diagnoses and prescriptions. This also means that nursing homes can’t refuse to share full medical records with patients.

Nursing homes can’t conceal shortened Medicare coverage. Sometimes Medicare coverage ends earlier than expected because it no longer deems nursing care medically reasonable and necessary. Nursing homes must notify residents when and why financial assistance is ending before they can continue to bill charges. Beyond this, however, Medicare does not require nursing homes to keep track of anyone’s Medicare benefits.

Nursing homes can’t punish you for complaints. Whether you’re the resident or a caregiver, you have the right to complain about any problems in a nursing home, from falls to bedsores to improper feeding. If the nursing home’s management doesn’t satisfactorily address your complaints, here’s how to report nursing home abuse in Ohio.

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Series of Dog Attacks Rattles Cleveland

vicious-dog

Many of us have gotten nervous when a strange dog approaches us aggressively. But maybe the dogs we should actually be concerned about are the ones in our own homes. Three Northeast Ohio animal attacks in July illustrate the danger even loved ones can face from out-of-control pets.

Three dog attacks

On July 13, 2015, a woman died after being mauled by a pit bull at a Shaker Heights home. She was the 71-year-old grandmother of the dog’s owner. When the dog attacked, neighbors rushed in to help. One shot and wounded the dog, stopping the attack, but it was too late. The woman’s injuries were too severe and she died at the hospital. Police later shot and killed the dog.

In Willowick, a pair of large dogs broke loose from their owner’s house and bit two people before police subdued then with a stun gun. And in Chardon, a 7-month-old baby suffered life-threatening injuries when she got caught in the middle of a fight between a bulldog and a pit bull. Both dogs belonged to members of the infant’s family.

Can we blame the breed?

Two of these three violent attacks involved pit bulls. They add to the breed’s longstanding reputation for danger. So should Cleveland-area lawmakers ban breeds like pit bulls, Rottweilers, and Dobermans? It’s a national debate with passionate supporters on both sides. But currently, the trend is moving away from breed-specific legislation.

Many studies have concluded that breed-specific legislation doesn’t have a measurable effect on stopping dog attacks. In 2006, the National Canine Research Council identified the most common factors found in fatal dog attacks:

  • 97 percent of the dogs involved were not spayed or neutered.
  • 84 percent of the attacks involved owners who had abused or neglected their dogs, failed to contain their dogs, or failed to properly chain their dogs.
  • 78 percent of the dogs were not kept as pets but as guard, breeding, or yard dogs.

Organizations including the ASPCA and the American Bar Association currently advocate for breed-neutral laws that target troublesome pet owners:

  • Enhance enforcement of dog licensing and leash/dog–at–large laws.
  • Focus on dogs’ individual behavior, with mandated sterilization and microchipping of dogs deemed dangerous.
  • Hold dog owners financially, civilly, and criminally accountable for violations.
  • Mandate the sterilization of shelter animals and make low–cost sterilization services widely available.

Were these attacks preventable?

Although police are still investigating each case to determine whether to file charges, these don’t seem to be stories of random aggression. All of the victims were neighbors or family members of the dogs’ owners.

These three dog attacks underscore the importance of responsible pet ownership. In fact, the state of Ohio’s dog bite law holds dog owners and caretakers legally responsible for their dogs’ behavior. During May’s National Dog Bite Prevention Week I shared tips on preventing dog bites. Reviewing these tips with your family is about more than being a good neighbor—it could save lives.

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