Articles Posted in Nursing Home Legislation

Late last month, one lawmaker introduced the Protecting Access to Care Act, which, among other things, would limit certain damages awards to the victims of nursing home abuse and neglect. While the Act does not mention nursing home victims specifically, the broad changes proposed by the Act would, in effect, limit the availability of non-economic damages for nursing home abuse and neglect victims. It would also limit the amount of compensation nursing home abuse and neglect victims could receive for their pain and suffering.

Capitol BuildingThe Act

According to one news source, a proponent of the Act claims that it will “throw blame out the window” and will allow for all involved parties to focus on how to prevent accidents rather than engage in post-accident litigation. The Act applies to anyone covered under Medicare, Medicaid, military health plans, and the Affordable Care Act, and caps damages against doctors, hospitals, and nursing homes in many situations. In addition, the Act would provide legal immunity to pharmaceutical companies whose products harm patients, so long as the product was FDA-approved.

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Over the past few decades, arbitration clauses have become ubiquitous in the contracts that residents (or their family members) must sign prior to being admitted into the nursing home. These arbitration clauses may act to prevent a nursing home resident or their family from pursuing any legal action in the court system against the nursing home. Instead, these claims are settled through an arbitration company that will hear both sides and issue a binding decision. Arbitration clauses are enforced without regard to the strength of the evidence, meaning that even the strongest cases of nursing home abuse and neglect may be prevented from ever reaching a courtroom.

DocumentThe problem for nursing home residents and their families is that the nursing home selects the arbitration company in the pre-admission contract. As a result, the companies that are selected are potentially biased in favor of nursing homes. Additionally, the language of the arbitration clause is often buried deep in dense paragraphs, making it unlikely that potential residents or their family members will read and comprehend the rights they are giving up by signing the contract. This has led many arbitration contracts to be held to be invalid as a matter of law and also as a matter of good public policy.

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As this blog discussed in a post last month, the Centers for Medicare and Medicaid Services recently announced a new rule that would deny funding to any nursing home that includes a mandatory arbitration clause in its admission contract. Essentially, the new rule uses fiscal policy to discourage nursing homes from including arbitration clauses in their contracts. This means that abused or neglected nursing home residents will be able to use the court system – rather than a private, confidential, and often one-sided arbitration system – to resolve claims against nursing homes.

Nursing HomeSome commentators suggest that the new rule may also lead to an overall increase in the level of care nursing homes offer to residents. According to one recent news article discussing the new rule and its potential implications across the nursing home industry, nursing homes will now be forced to deal with the claims against them in public courthouses rather than in confidential arbitration.

One of the reasons the nursing home industry favored arbitration for years was that the results of the arbitration – favorable or not – were not made a part of the public record. However, with fewer nursing homes including arbitration clauses in their admission contracts, the public will have a greater understanding of the types of claims that arise in nursing homes. This increased awareness, it is suggested, will result in nursing homes trying harder to avoid potential claims.

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Before a resident is admitted to a nursing home, a contract must be signed. The contract outlines both parties’ rights and responsibilities, as well as setting out some ground rules in the event that the resident or their family sues the nursing home. Over the past decade, more and more nursing homes have included arbitration clauses in these contracts, forcing residents to resolve all disputes through a third-party arbitration company rather than use the court system.

Signing a ContractIn these contracts, the forum of the arbitration is often chosen by the nursing home, and the outcomes of disagreements have historically favored nursing homes. However, in a very important new rule announced by the Department of Health and Human Services, nursing homes that require residents and their families to submit to arbitration rather than the court system will no longer receive federal funding. It is estimated that this new rule will affect 1.5 million nursing home residents nationwide.

Since the nursing home industry has benefited greatly from these arbitration clauses, the industry has reacted negatively to the new announcement. In fact, one spokesperson attacked the Department of Health and Human Services’ legal authority to implement such a rule, saying that the rule “clearly exceeds” the agency’s authority. He also claimed that the rule was “wholly unnecessary to protect residents’ health and safety.”

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It is a well-known fact that nursing homes do not enjoy an unblemished reputation when it comes to the quality of care they provide to their residents. In fact, it seems that one can hardly go a couple days without reading about some instance of abuse, neglect, or other misconduct committed by nursing home staff or management.

pills-1213599-mBecause of these concerns, lawmakers across the country have banded together to increase the regulations placed on nursing homes in the hopes that the quality of care being provided will increase. According to one DelmarvaNow report, a local online news source, the following areas will be targeted by federal regulations:

  • Measures of facilities’ use of anti-psychotic drugs; and
  • The use of more refined metrics to check for adequate staffing.

Delmarva Nursing Homes Are On Par

The article goes into a superficial, although somewhat useful, analysis of Delmarva nursing homes, noting that the peninsula’s nursing facilities fare about average as compared to the rest of the nation. One area where the local nursing homes excel is in the area of prevalence of pressure ulcers, use of restraints, and the extent of falls resulting in injury. This is an important category, but it is far from the only important metric in the study.

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South Carolina is joining a group of states in a recent trend regarding legislation addressing hidden cameras. Sometimes referred to as “granny cams,” devices are placed inside nursing homes, and are designed to capture potential abuse of residents.surveilance%20cam.jpg

The legislation, such as in other states, was inspired by at least one reported instance of nursing home abuse being captured on hidden camera. A woman contacted a private investigator about placing a video camera in a nursing home, due to her suspicions that her 101-year-old grandfather was being abused, but because he was so frail, the man couldn’t talk about it. After consulting with attorneys regarding potential privacy concerns, the private investigator placed the small camera next to the resident’s bed, at such an angle so as to limit the capturing of his roommate. There was also no sound recording, so as to limit the potential recording of private conversations.

The footage allegedly depicted a nursing home worker hitting and taunting the elderly man as he lay in bed. The employee was later arrested.

The case inspired a South Carolina state senator to introduce a bill addressing families’ rights to use electronic surveillance to monitor the care of their loved ones.

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The Florida Senate Judiciary Committee recently voted to approve a bill that would have a major impact on the ability of plaintiffs in nursing home lawsuits to recover punitive damages. scales.jpg

SB 1384, which passed by a 7-2 vote, would require that at an evidentiary hearing the individuals establish that the nursing home breached its legal duty, which resulted in the actual injury, loss, or damage to the victim.

Sources believe that rather than achieving reform, the law would preclude valid nursing home lawsuits. Current law already requires that 50% of punitive damage awards against nursing homes go to a state “quality trust fund.”

Under current law, plaintiffs must present evidence at a pre-trial hearing, but do not need to prove that it is admissible. This presentation of evidence is called a “proffer.” The bill, as written, would require a stricter hearing in order to allegedly filter the plaintiff’s evidence, and would further require the presiding judge to grant permission to seek punitive damages. The alleged aim is to prevent cases which seek to use inadmissible evidence, such as hearsay, in establishing a claim for punitive damages.

The original proposal also contained provisions making it more difficult to sue the nursing home’s parent company, but those sections have since been removed.

The bill must be approved by two additional committees before it would proceed to a full Senate vote.

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camera.jpgThe Oklahoma Legislature is in the midst of deciding whether to approve a measure that would allow loved ones to place hidden cameras in resident rooms in order to document potential abuse. The issue of hidden camera placement is currently up to each individual facility to decide.

As proposed, Senate Bill 587 would allow nursing home residents to put cameras inside their rooms. However, there is an amendment to the bill that would potentially penalize anyone who sets up a camera without first obtaining permission.

The bill is being advocated for by three sisters who caught workers on camera mistreating their mother while she was a resident of the Quail Creek Nursing Home. According to one of the sisters, who placed the camera in her mother’s room,”One of them had put rubber gloves in her hand and she was stuffing them in mother’s throat.” Although their mother died last year, the sisters remain strong advocates for the bill.

While we always hope that our loved ones won’t be the victims of nursing home abuse or neglect, the sad truth is that many are. With many elderly individuals suffering from dementia or other ailments which impede their ability to communicate, absent objective markers, we may continue to remain unaware that they are being mistreated. Bills like this one would provide a potential way for family members to ensure that their loved ones are receiving the quality of care that they need and deserve.

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Pressure sores or ulcers, which are commonly referred to as bed sores, are probably among the hospital%20bed.jpgmost common sort of potential new injury incurred by nursing home patients who are incapable of moving about freely. While they can be annoying or painful, they can also become infected and lead to a vast array of additional complications for nursing home residents. Perhaps most importantly, they can be prevented.

It’s for this reason that federal law makers have passed regulations for nursing home facilities which address this problematic complication.

42 CFR § 483.20 entitled “Resident Assessment” requires a comprehensive assessment of the resident. While this blog post focuses on the skin care assessment and bed sore prevention, the facility is required to assess 17 other factors, all related to the patient’s condition upon entering the facility. The facility has 14 days from the person’s arrival to complete this assessment, and it then has 7 days from the completion of the assessment to develop a care plan addressing the patient’s various needs.

42 CFR § 483.25 Quality of Care, explicitly addresses what must be done in regards to bed sores specifically. It states that based upon the comprehensive assessment, the facility must ensure that:

  • A resident who enters the facility without bed sores does not develop them (unless the person’s individual medical condition makes them unavoidable); and
  • A resident who does have bed sores must receive proper treatment and/or services to promote the healing process, prevent infections from developing, and prevent new sores from happening.

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800px-Medicare_spending_per_capita.pngThe Fourth Circuit Court of Appeals affirmed the dismissal of a qui tam lawsuit brought under the False Claims Act (FCA) against a nursing home for alleged Medicaid fraud. The relator in United States ex. rel. Black v. Health & Hospital Corp. of Marion County alleged that an Indiana nursing home fraudulently submitted bills to the Medicaid system for services it had not rendered. The United States declined to intervene in the lawsuit. The relator alleged that bills submitted for federal matching funds from the Medicaid system exceeded amounts spent on actual care to Medicaid patients, and argued that this constituted fraud. The trial court dismissed the suit for lack of subject matter jurisdiction. The case demonstrates the complex nature of the Medicare and Medicaid systems and the difficulty of understanding, let alone enforcing, laws prohibiting fraud.

The relator, Paul R. Black, resides in Indiana. After unsuccessfully filing a qui tam suit in an Indiana federal court, he filed the present case in the U.S. District Court for the District of Maryland against Health & Hospital Corporation of Marion County (HHC), an Indiana nursing home. The district court described the three state-level Medicaid funding mechanisms at issue in Black’s suit:
– The Upper Payment Limit (UPL) system sets an upper limit for the amount a state may reimburse medical providers equal to the amount it could receive from Medicare.
– Intergovernmental transfers (IGTs) allow states to transfer money from local government entities to the state government in order to fund the state’s portion of Medicaid expenses.

– Certified public expenditures (CPEs) are expenditures made by Medicaid providers that qualify for matching funds directly from the federal Medicaid system. They must receive certification from the federal Centers for Medicare and Medicaid Services (CMS).

Black’s lawsuit, as well as the Indiana suit filed before it, alleged that HHC was over-reporting expenditures to the Medicaid system using fraudulent IGTs or CPEs, thereby making an unlawful “profit” on Medicaid-funded services. Black asserted four causes of action for violations of the FCA, including factually false claims to CMS, legally false claims to CMS, submission of false records and statements, and conspiracy to defraud the United States. HHC moved to dismiss the suit, and the trial court agreed.

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