Nursing Homes Abuse Blog - By Jonathan Rosenfeld

Perhaps in response to the widely publicized problems involving violence at Illinois Nursing Homes, new legislation would force facilities to increase their staffing levels and improve the care provided to their patients or risk larger fines imposed by the state.

According to legislative sponsor, Senator Jacqueline Collins,

" We are here to say quite boldly and courageously that we're willing to take on the nursing home industry. For too long they've had the influence and power in this state and I want to say that we can mount a strong coalition to state together to fight for policy changes that truly address the disparities in care and the lack of care."

Not surprisingly, the proposed legislation is already being opposed by nursing home industry insiders as unnecessary and too aggressive.

Certainly any legislation that is aimed at improving patient care should be applauded.  For too long nursing home patients in Illinois have be unnecessarily victimized by a system where nursing home operators can legally put their desire for profits ahead of patient needs.  Maybe this legislation could help turn the tables?

Read more about this proposed nursing home legislation here.

Related Nursing Homes Abuse Blog Entries:

Drugs, Criminals & Violence. Welcome To The 'Psychiatric Ghetto' Nursing Home

Illinois Nursing Home Task Force Holds Public Meeting Today

Atleast 50 Convicted Sex-Offenders Living Freely In Illinois Nursing Homes

Sexual Assaults In Nursing Homes, Not Exactly A Pleasant Topic-- But Is An Issue That Needs Attention

The Des Moines Register reported on a new bill proposed by Senator Tom Coburn (R- Oklahoma) that would end the practice of paying poorly performing nursing homes a bonus.  Under the current system, nursing homes across the country are paid hundreds of millions of dollars in bonuses by taxpayers regardless of their record of health and safety violations at their facilities.

The Register looked at eight programs in seven states where regulatory violations don't disqualify a nursing home from receiving a bonus and determined the eight programs alone cost taxpayers $312 million per year.  "We paid out in excess of $300 million in bonuses to nursing homes that had significant problems in terms of giving the care and meeting Medicare standards," Coburn said. "Why? Why wouldn't we fix that?"

In addition to providing bonuses to nursing homes that fail to meeting government standards, the government also pays bonuses to nursing homes for legally mandated requirements such as installing fire sprinklers or paying employees minimum wages.

The bill was accepted by unanimous consent of the Senate, but the bill remains to be approved.  Read more about this nursing home legislation here.

Related Nursing Homes Abuse Blog Posts

New Bill Would Return Money To Dangerous Nursing Homes After They Correct Problems

New Law Makes Prosecution Of Nursing Home Cases More Difficult

More Support For The Nursing Home Transparency Act

I was forwarded this clip by several people following my post on new legislation that restricts the publics right to access nursing home inspections.  This law throws another hurdle at those who are victims of nursing home abuse and neglect.  Well said Keith!

Unknown to most, in his later days of his term, former-president George Bush signed off on a new law that effectively clamps down on the publics' access to nursing home inspection reports.  The law was signed into effect without congressional debate or public knowledge. 

In the past, nursing home inspections could be accessed by families by families to help determine if a nursing home was responsible for a suspicious injury or death of a loved one.  Ultimately, the inspection reports were helpful in nursing home litigation as the information helped establish liability on the part of the nursing home.  Similarly, if the report did not contain enough information to prove liability of a nursing home, a decision could be made that there was no sense in pursuing the matter.

Under the new law, state nursing home inspectors and Medicare and Medicaid contractors are considered federal employees, a group usually insulated from provided information in a lawsuit. Additionally, state health departments and contractors are not permitted to participate in private lawsuits involving facilities that receive government funding (virtually all nursing homes) without permission from the head of the Department of Health and Human Services.  Now in order for litigants to access the inspection reports, they must now get a court order to access the information.

"This change hurts nursing-home residents and their families by allowing bad practices to be kept in secret by nursing homes and inspectors," according to Eric M. Carlson and attorney with the National Senior Citizens Law Center in Los Angeles.  "Government inspectors have the right to go into nursing homes and investigate, and they learn things that the residents and families otherwise could never find out."

If anything, the end result of this law is that it encourages nursing home litigation.  With limited information regarding the circumstances relating to an unexplained injury there will be little choice other than to file a lawsuit to access that information. 

Web Resource

New Rule Enacted by Bush Administration Impedes Cases Against Nursing Homes, By Cindy Skrzycki The Washington Post, February 24, 2009

Three new laws have recently taken effect in California to help protect seniors from physical abuse, neglect and financial exploitation. 

• SB 1140- Attempts to define elder abuse more clearly and provides stiffer penalties.  Taking advantage of a person's weakness of mind, lack of confidence or physical frailty - known as 'undue influence'  - is now grounds for criminal action.  The law requires immediate return of the senior's property if taken under undue influence.
• SB 1136- Provides punitive penalties to those who con senior into paying for free services such as Medi-Cal or Medicare coverage.
• AB 2100- Require state ombudsmen, those who police nursing homes and assisted living facilities, to report suspected abuse to the District Attorneys Office.

'I think we are only seeing the tip of the iceberg right now," said Mike Gargiulo, head of the Los Angeles County District Attorney's Elder Abuse Division.  "Our business  is going to expand exponentially with the aging population."

According to the U.S. Census, the number of people over 65 is expected to grow from the present figure of 39 million to 62 million by 2025.  Currently, the American Psychological Association estimates that 2.1 million seniors suffer from elder abuse, but only a small percentage of the cases get reported to officials.  Read more about new laws to protect the elderly here.

If you are the victim of abuse or suspect abuse of a loved one, the National Center For Prevention Of Elder Abuse has a useful website that provide information on reporting abuse for each state.

In the past I have posted on nursing home receiving violations from state and federal nursing home inspectors.  What are these regulations?  Who actually issues the violations? How do the regulations impact nursing homes?

This guest post from Jenn at Nursing Home Surveyor blog addresses these questions and provides useful guidance in interpreting the regulations.  Jenn's perspective on regulations is exceptionally useful as she is a state nursing home surveyor.

Hospitals and Nursing Homes, places that are supposed to be of benefit to many people, yet for many others, they are places that have brought problems and even unexpected, needless death. It’s almost a daily occurrence where one can read or hear in the news of a problem in a hospital or nursing home that led to the needless suffering and/or death of someone who put their trust and faith in a facility. It is because of the problems that occur on a daily basis in some places that all of us need to be aware of what to look for. You need to keep you eyes open whenever you or a loved one enters a hospital or nursing home. You should also be aware of where the regulations that govern a hospital or nursing home are located.

There are state regulations, and each state will have a different code, title, or set of regulations. They may vary from one state to another, but very often the state regulations will mirror the federal regulations. The federal regulations can be found in a document the Centers for Medicare and Medicaid publish. This document is the State Operations Manual. It is composed of many chapters and many ‘appendices”. It is the appendices that contain a copy of the text of regulations that govern hospitals and nursing homes, as well as the “guidelines” that help investigators of nursing homes and hospitals conduct an investigation (a survey) of a facility. I go into more detail about this at my blog, if you would like more detail.

Let me talk about the nursing home regulations for a bit. Those are found in what is called Appendix PP (Appendix double P). The set up of the Appendix has a regulation first, and then some guidance, probes, and procedures following it. In order to easily find particular parts of regulations, the nursing home regulations are split into tags, called “F-tags”.

The Federal regulations help bring consistency to care provided to residents of nursing homes. Nursing Homes must comply with the regulations, and the nursing homes are supposed to be surveyed for compliance to the Federal regulations on an average of every 9 to 15 months. Some states do well in meeting that goal, others do not do so well.

If a facility is found to not be in compliance with a regulation, they will receive a “deficiency”. They have to then write a plan of correction, which means they must explain how they are going to correct the problem and ensure it never happens again. After the facility sends in their plan of correction, the state agency reviews it and determines if it is acceptable. If it is not acceptable, the facility must re-write it. For some facilities just seeing the plan of correction in writing is good enough, but for other, a “re-visit” is planned. Much of this is dependent on the severity and scope of the problems in the facility.

If a facility continues to not be in compliance, they can be put into a “decertification track” meaning that they will lose the opportunity to receive Medicare and Medicaid monies to pay for resident care. This is serious, so facilities do try to maintain their certification. They can also lose their state license to operate if the fail to comply with regulations.

Facilities are given ample time to comply. Although the surveyors are not “consultants” to the nursing homes, the nursing homes do have many avenues to pursue to help them become compliant with regulations.

So what should you do if you or a loved one needs to enter a nursing facility? There are many sites, such as Nursing Home Surveyor, that can help you explore the good and bad so you know where the good ones are and avoid the “not so good”. It is important that you take the time to read the history of the facility you are considering, and read the most recent surveys. One of the regulations requires the nursing home to post their most recent surveys in a public place so the public and the residents of the facility have easy access to the results. This is often the main lobby.

Be safe and be informed!

JL

Jenn is a state surveyor and invites you to visit her blog at: www.nursinghomesurveyor.com for more help and information about the survey/investigation process.

The Senate Finance Committee passed the Patient Safety and Abuse Prevention Act, S. 2838 which notably abolishes mandatory arbitration clauses and establishes a nationwide system of background checks to stop convicted felons from working in nursing homes and other long-term care facilities.

The bill is now going before the full Senate.  The legislation puts in place a system of background checks and encourages federal and state coordination. It will utilize the FBI’s national database and state police records in order to effectively screen potential care-givers for criminal history. The criminal background checks will prevent common incidents involving: sex abuse, physical abuse and neglect. 

Nursing home arbitration clauses have been a sneaky secret inserted into admission documents for unsuspecting nursing home residents and their families.  The arbitration clauses attempt to force cases involving nursing home injury or death to be resolved before an arbitrator as opposed to being able to have their case heard in court.  In many circumstances the arbitrators are actually paid by the nursing homes--hardly impartial.

The Watchdog Blog and specifically blog authors, David Arkush and Christine Hines did a nice job describing how the nursing home industry did its best to misrepresent the importance of a right to jury trial for nursing home cases.  Arkush and Hines sum it up best when describing the intentions of nursing home owners attempts to continue with mandatory arbitration, 'We're corporate lobbyists fighting for the right to neglect or abuse elderly nursing home residents with impunity.  Our corporate clients want to make millions in profits without worrying about being held accountable if they hurt people.'

Call your senator and tell him or her to vote to support the Fairness In Nursing Home Arbitration Act.

• Disclosure of nursing home ownership and management. Corporations would be required to disclose their owners, operators, financers, and other related parties. Facilities that were part of chains would be required to submit annual audits. Purchasers would have to demonstrate that they were financially able to run facilities.
• Abolish mandatory arbitration clauses from all long-term care facilities.
  
• Require disclosure of how Medicare and Medicaid funds are spent.  Providers would have to report wage and benefit expenditures for nursing staff on cost reports. Cost reports would be revised to categorize spending for direct care, such as nursing and therapies; indirect care, such as housekeeping and dietary services; capital costs, including buildings and land; and administrative costs, which often include the company's profits.
  
• Establish independent monitoring of chains. The federal government would develop a protocol for an independent monitor of chains to analyze their financial performance, management, expenditures, and nurse staffing levels. It would provide for corrective action and collection of civil monetary penalties.
  
• Collect accurate information about nurse staffing. The government would collect data electronically from nursing homes on the number of RNs, LPNs, and nursing assistants, using payroll records and contracts with temporary agencies as the source. Data would include turnover and retention rates and hours of care per resident provided by each category of worker.
  
• Provide better public information about nursing homes. Nursing Home Compare would be updated with more timely reporting of surveys; ownership information; accurate nurse staffing data, including turnover and retention rates; links to survey reports (Form 2567) when states put them on-line; enforcement actions; and all Special Focus Facilities identified for three years.
  
• Information on nursing homes would be accessible on a centralized website. Implement new consumer complaint processes The government would develop a standardized form consumers could use in filing complaints with the state regulatory agency or ombudsman. States would be required to establish a complaint resolution process for residents' representatives who were retaliated against, including denied access to residents, if they complained about quality of care or other issues.
  
• Provide for higher civil monetary penalties.  Since the 1987 Nursing Home Reform Act, there has been no increase in the penalties assessed nursing home for violations.  Then new law would fine nursing homes - up to $100,000 in the case of a resident's death. Fines would be held in escrow during appeals of deficiencies, no longer delayed until appeals were resolved. Federal CMP funds, which are now returned to the U.S. Treasury, are encouraged to be used for the benefit of residents.
  
• Provide for reporting of closures and continuation of federal payments. Nursing homes would be required to give 60 days notice of closure, including a relocation plan and assurances that residents would be transferred to the most appropriate facility or other setting. No new residents could be admitted after the notice was given, and the federal government could continue Medicare and Medicaid funding for residents until relocation was completed.
• Authorize studies of temporary management; special focus facilities; culture change; and nurse aide training. The bill provides for studies of temporary management; the characteristics of Special Focus Facilities, including ownership; best practices in culture change; and training of nurse aides and supervisors. Dementia management would be added to the initial 75-hour nurse aide.
  

Illinois nursing home residents are protected under The Nursing Home Care Act (210 ILCS 45). The Act covers nursing home residents regardless of whether the facility is operated for profit or not. Under the Act, a ‘nursing home’ must fit into the category of a ‘long-term care facility’ in order for the law to apply.

A ‘long-term care facility’ is defined as a ‘private home, institution, building, residence, or any other place, whether operated for profit or not, or a country home for the infirm and chronically ill…which provides through ownership or management, personal care, sheltered care or nursing for 3 or more persons, not related to the applicant by blood or marriage….It also includes homes, institutions, or other places operated under the authority of the Illinois Department of Veterans’ Affairs.’

This law assures nursing home residents are free from abuse or neglect. If a resident is abused or neglected they are entitled to recover damages from the facility and/or their owners. Injured nursing home residents may recover money damages for past and future damages for pain and suffering, loss of normal life and medical expenses. Additionally, the Act allows residents to recovery attorney fees and costs.

Nursing home ‘abuse’ is defined as intentional infliction of a physical or emotional injury on a resident. Nursing home abuse is different from negligence in that it is not accidental. An example of abuse in a nursing home is sexual assault or battery.

Nursing home ‘neglect’ is defined as the failure to provide necessary medical treatment or assistance. Neglect is the result of the action or inaction of the nursing home staff to address residents’ needs. Common examples of nursing home neglect are: significant weight loss, bed sores, unexplained broken bones and severe cognitive decline.

I encourage you to review the Nursing Home Care Act to learn what your rights area. For a good synopsis of nursing home residents rights, below  is a list compiled by Illinois Legal Aid:

• You have all your rights as a U.S. citizen, including voting, freedom of religion and freedom of speech
• You have the right to manage your financial affairs. You cannot be denied access to any money the nursing home holds for you.
• The nursing home must give you information on how to apply for Medicaid along with the rules for “spousal impoverishment”
• You have the right to private and readily available mail, phone calls and visitation
• You are entitled to respect and privacy. Staff must knock before entering your room
• You must be permitted to have and wear your own clothes. Clothes the facility gives you must fit properly
• You have the right to see and copy all your medical records
• You may use your own personal doctor (at your expense or under your personal insurance coverage)
• The home cannot make you perform work for the facility
• You have the right to be informed of your present medical diagnosis, treatment, and prognosis. The facility must keep your medical and personal care confidential
• You can refuse any medical treatment unless needed to prevent harm to others
• The nursing home must honor any “do not resuscitate” (Living Will) orders that are on file and must develop a policy for keeping such orders on file
• You cannot be physically restrained or drugged without a doctor’s order. You may not be abused or neglected at any time. You cannot be strapped down unless a doctor orders it
• You can present grievances to the administration or anyone else without being penalized or discharged
• You can call or see your attorney, social worker or local ombudsman privately during business hours
• You and your spouse living in the same nursing home can live in the same room unless there is a medical reason against it
• The home must provide convenient access to mailing facilities and telephones. It must allow daily visiting between 10 a.m and 8 p.m.
• The home must discharge or transfer you at your request (or guardian’s request)

If you notice the nursing home in which you or your loved one is a resident at a nursing home that violates the above rights, I suggest you do one or more of the following:

• File a complaint with the long-term care Ombudsman
• File a complaint with the Illinois Department of Public Health 
• Contact an attorney and have them file a lawsuit against the facility

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