Hopes for Improved Care in Nursing Homes as New Rule Allows Lawsuits

By Charlotte Cuthbertson, Epoch Times
October 4, 2016 8:23 pm Last Updated: October 5, 2016 1:07 pm

Thousands of elderly Americans are beaten, underfed, or neglected in nursing homes around the country every year. But until now, neither they, nor their families, could sue for redress.

They gave up that right when they signed a stack of paperwork that included a clause that would force them into arbitration—which is private, confidential, and often favors the facility—should a dispute arise.

A new rule issued by the Department of Health and Human Services prohibits binding arbitration clauses in any long-term care facility that accepts Medicare or Medicaid. Now, consumers have the option to file a lawsuit.

“It prevents nursing facilities from taking advantage of people on the front end and having them sign things when they’re thinking about everything other than arbitration,” said Eric Carlson, directing attorney for Justice in Aging, a nonprofit that fights senior poverty through law.

Nursing facility admission agreements are often more than 30 pages long with all the added attachments, Carlson said.

“When someone’s entering a nursing facility, they’ve got enough to worry about,” he said.

The new rule is part of a larger revamp of consumer protections by the Center for Medicare & Medicaid Services (CMS), which goes into effect on Nov. 28. It impacts admissions agreements going forward; current agreements will stand.

Better Care

More than 1.35 million people were living in nursing homes in 2014, according to the Centers for Disease Control and Prevention.

The new rule will result in improved care at nursing facilities and increased transparency, says Charles Brown, the founding partner of Brown Wharton & Brothers, which handles nursing home abuse cases nationwide.

“The public will have more ability to examine nursing homes and their records for abuse and neglect,” Brown said. “That makes everyone safer.”

For Brown, the issue is personal too. His grandfather was admitted to a nursing home to receive treatment for a blood disorder. After only two weeks there, he was found dead—but the cause of death was unrelated to his medical condition, according to an account on Brown’s company website.

Brown said his firm receives “hundreds and hundreds” of abuse cases every year.

In 2014, 14,258 complaints involving abuse, gross neglect, or exploitation at nursing homes were reported to the federal government’s Administration for Community Living ombudsman programs.

Joyce Kavanagh pets her cat in her room at a senior center in Encinitas, Calif., in 2012.  (AP Photo/Gregory Bull)
Joyce Kavanagh pets her cat in her room at a senior center in Encinitas, Calif., in 2012. (AP Photo/Gregory Bull)

Elder abuse includes physical abuse (assault and rape), financial exploitation, and neglect (failure to provide adequate food, shelter, and health care), according to a 2008 congressional report.

“Evidence shows that abuse in institutions is extensive and alarming,” the report said.

The most cited problem is inadequate staffing.

“It is often asserted that the quality of care in nursing homes is impaired because staffing is inadequate, staff is insufficiently trained, and turnover is high, especially for certified nurse assistants,” the CMS stated in a 2015 report.

Brown said lack of staff is behind most of the complaints his firm sees, too.

Richard Mollot, executive director of New York-based Long Term Care Community Coalition, said the same thing.

The coalition is involved mostly in policy, but also provides training to families on how to navigate the law around long-term care.

Mollot said when he started talking to family members, many of them got angry at him. “Their experience in their nursing home is so different from the rights that residents have under federal law.”

Family members had come to accept care that was substandard, and oftentimes abusive or neglectful, he said.

Mollot said the lack of oversight in nursing facilities is a huge problem and the new CMS rule allowing consumers to sue should provide more transparency.

People often don’t sue “unless it’s something horrific,” he said. “And even then, people generally want to make it go away. … They don’t want to go through that.”

Mollot dismisses the industry’s criticism that the option to sue will just make lawyers rich. Whether that’s true or not, the benefit is that now there will be lawyers alerting people to what is going on.

The forced arbitration law change was only a small part of the 713-page regulation document that the CMS released. Much of the document focuses on quality of care and the rights of residents based on the Nursing Home Reform Law from 1987.

Mollot said the whole document is a positive move.

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Health Care Numbers

1,368,667 = People living in nursing homes in 2014

15,643 = Nursing homes in 2014

52 million = People who received Medicare in 2012

6.2 million = People over 85 with severe or moderate memory impairment by 2050, up from 1.6 million currently

National health expenditures as percent of GDP:
1960 = 5 percent
2014 = 17.5 percent

Personal health care expenditure, per capita:
1960 = $125
2014 = $8,054

Source: Centers for Disease Control and Prevention; Caregiver.org

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About Arbitration

  • In an ideal scenario, arbitration is cheaper, faster, and just as independent as going through the courts. But there are problems.
  • Arbitration is a private proceeding and consumers may be required to sign a confidentiality agreement, so the result stays private.
  • Arbitrations have been criticized for favoring companies at the expense of consumers.
  • People often have little idea whether they are under an arbitration clause or what it means.

About Class Action

  • Class action means that you may sue a company and win compensation not only for you, but for all the consumers with the same complaint. This can be extremely costly for a company but each plaintiff may not receive a large settlement.

SOURCE: Consumer Financial Protection Bureau

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Summary of Major Consumer Protections

The following are comments from Justice in Aging’s about some major areas of long-term care, as related to the new CMS document.

Quality of Care

Staffing

Although inadequate staffing is the greatest problem in nursing facilities today, the new regulations do not include a minimum staffing standard or a requirement for a 24-hour Registered Nurse. Instead, the new regulations continue current policy: requiring “sufficient” staffing levels, and registered nurse presence for eight hours daily. However, staff must have “appropriate competencies and skills sets,” and staffing levels must take into consideration the number, acuity and diagnoses of the resident population, based on a newly mandated facility assessment.

Person-Centered Care

For the first time, the regulations define person-centered care and require that facilities learn more about who the resident is as a person, provide greater support for resident preferences, and give residents increased control and choice.

Care Planning

Under the new regulations, facilities must develop a baseline care plan for a new resident within 48 hours of admission. The care planning process itself calls for greater resident involvement and participation.  In addition, the certified nursing assistant responsible for the resident and a member of the food and nutrition services staff must participate in the care planning process.

Abuse, Neglect, and Exploitation

Provisions related to abuse, neglect and exploitation are now included in a separate section, which brings more attention and focus to these issues. New protections include prohibiting licensed individuals with a disciplinary action from being hired and requiring that suspicion of a crime be reported to law enforcement and the state survey and certification agency.

Antipsychotic Drugs

Many residents with dementia are inappropriately given harmful antipsychotic drugs, despite strong current federal rules. The new regulations water down existing protections by folding antipsychotic drugs into a broader category of psychotropic drugs and moving them from quality of care regulations to pharmacy services.

Training

Training requirements have been expanded to apply to all staff, contractual employees, and volunteers.  Mandatory topics  include communication, residents’ rights, and abuse, neglect and exploitation. Certified nursing assistants will be required to receive training on dementia management and resident abuse prevention.

Resident Rights

Prohibiting Pre-Dispute Arbitration

Currently, many nursing facility admission agreements include provisions obligating the resident to have disputes adjudicated through private arbitration. Such “pre-dispute” arbitration agreements now will be prohibited. Arbitration agreements will be allowed only when the events at issue occurred before the arbitration agreement was signed.

Improvements to Involuntary Transfer-Discharge Procedures

The new regulations specify that transfer-discharge for non-payment is inappropriate when the resident has submitted necessary paperwork to a third-party payor (such as Medicaid), and that payor is now evaluating the claim for payment. Also, facilities now will be obligated to send a copy of each transfer-discharge notice to the state’s long-term care ombudsman program, which is available to advise the resident.

Limiting Facility’s Ability to “Dump” Resident at Hospital:

In an effort to evade transfer-discharge requirements, some facilities “dump” residents by refusing to readmit them from hospitalizations. To address the problem, the new regulations explicitly require a facility to follow the transfer-discharge procedures when the facility claims that a hospitalized resident cannot return to the facility.

Modifying Residents’ Rights to Have Visitors:

The new regulations continue current law providing each resident with a right to receive visitors at any time. In an unwelcome change, however, if a visitor is not a family member, the right to receive a visit now is “subject to reasonable clinical and safety restrictions,” as set forth in facility policy.    

Grievances

Far too often complaints from residents and families have been dismissed or not taken seriously. The regulations will now call for facilities to have a grievance policy and a grievance official to oversee the grievance process. Complainants will receive a written grievance decision that includes the steps taken to investigate, a summary of the finding or conclusions, a statement as to whether the grievance was confirmed or not confirmed , and the action taken or to be taken by the facility.

SOURCE: Justice in Aging