Articles Posted in Nursing Home Legislation

Maryland nursing homes must meet certain standards under state and federal regulations. They must follow state laws and regulations applicable to nursing homes. In addition, facilities that accept Medicare and Medicaid patients are also required to meet federal nursing home standards. Federal and state regulators ensure compliance by conducting surveys, visits, and investigations.

According to a recent news report, the Democratic candidate for president Joe Biden has said that he plans to spend $775 billion to expand community-based senior services if elected. He also wants to enact nursing home reform in the wake of the coronavirus pandemic. The current administration has generally maintained less oversight with a goal of reducing perceived paperwork burdens and focusing on public-private partnerships to tackle issues. For example, the administration plans to rely on retail pharmacies CVS and Walgreens to distribute a COVID-19 vaccine in nursing homes. The administration has proposed less frequent surveys of the highest-ranked nursing facilities to concentrate on “low performers.”

Biden has said he would make federal nursing home surveys more frequent and increase the current penalties to force compliance with federal standards. He also proposed requiring that each facility have a mandatory infection disease specialist, requiring the federal Department of Health and Human Services (HHS) to audit nursing home cost reports, and increasing personal protection equipment (PPE) supplies by invoking the Defense Production Act. The proposal also calls for restoring a previous ban implemented by President Obama on forced arbitration agreements for residents—a ban that President Trump reversed.

Recently, an industry news source recorded a fascinating podcast including an interview with a former assistant U.S. attorney who discussed legal issues that could arise for nursing homes from the COVID-19 pandemic. The podcast discusses how nursing home abuse and neglect cases may be affected by the virus. The information is very important for residents of Maryland nursing homes or those who have loved ones in these facilities.

The podcast discussed the various immunity laws passed for health care providers as a result of the pandemic in states across the country. These laws are not brand new—some states have long had immunity provisions that kick in automatically whenever a state of emergency is declared. Most of the current immunity provisions in effect now during the COVID-19 pandemic change the level of culpability that facilities can be held to in nursing home abuse or neglect cases that have to do with the disease.

Typically, someone bringing a nursing home abuse or neglect case has to prove that the actions of the facility amounted to negligence and contributed to resulting injuries, illness, or death. However, the immunity provisions typically increase the standards. According to the podcast speaker, the provisions basically say that nursing home facilities and the individuals working within them will no longer be responsible for negligent behavior. Instead, they can only be held liable at a higher standard, such as gross negligence or reckless disregard. This makes it much harder for victims of nursing home abuse or neglect to hold the facilities responsible, because it’s a higher bar of proof to reach. In other words, it might not be enough to show that the nursing home or employees acted negligently or carelessly and caused the spread of COVID-19 or even a COVID-related death. Instead, potential plaintiffs might have to prove that the nursing home was extremely careless, perhaps even maliciously or willingly, which is much harder to prove as a matter of law.

Each year, more states enact laws that allow for cameras in nursing homes and assisted living homes, which provide much-needed protection for residents. The laws allow residents and their families to place cameras in the residents’ rooms. In 2003, Maryland enacted a law requiring the Maryland Department of Health and Mental Hygiene to develop guidelines for electronic monitoring. Under those guidelines, the state currently allows electronic monitoring in Maryland nursing homes with resident consent—but only if the nursing home allows it.

Meanwhile, other states continue to enact electronic monitoring laws, many that provide much greater protections to residents. According to a local news source, Minnesota recently passed an electronic monitoring law to protected elderly adults. The law, entitled the Elder Care and Vulnerable Adult Protection Act of 2019, took effect on January 1, 2020. A state ombudsman said that electronic monitoring is a right included in the state’s Home Care Bill of Rights.

The law was advocated for by families whose loved ones were abused or mistreated. Under that state’s law, there is a consent form required in order to obtain the monitoring device. Providers such as nursing homes must tell residents about the law and have the forms available to use. Consent is required from all people living in the same room. Before the law was enacted, according to the ombudsman, residents and their families were installing cameras, but there was nothing to stop others from removing the cameras. Under the new law, residents there can install cameras without letting the providers know.

The Centers for Medicare and Medicaid Services (CMS), an agency that oversees Medicare and Medicaid and works to identify and eliminate nursing home fraud and abuse, recently released a memorandum detailing their 2020 priorities. These updated priorities are important for Maryland families to understand, as they affect the rights of nursing home residents as well as a resident’s ability to recover in case of nursing home neglect or abuse.

One of the major updates included in the 2020 memorandum concerns arbitration agreements. Arbitration agreements, if signed, require an injured nursing home resident to settle disputes with the home through a confidential arbitration process, rather than in court. This process operates privately, and while it is much faster than traditional litigation, plaintiffs lose any right to appeal and evidence shows plaintiffs are more likely to lose in arbitration. CMS’s recent memorandum states that the agency will allow nursing homes to use binding arbitration agreements with their residents, but that such agreements cannot be required as a condition of receiving care. For instance, if a resident refuses to sign the agreement, nursing homes cannot refuse to care for them solely on that basis. Additionally, CMS indicated in the memorandum that nursing homes must also explain to residents or their representatives that they can still receive care without signing.

CMS also stated that it plans to make changes to how instances of abuse and neglect are reported and investigated. For instance, new guidelines released later this year may include changes in the time frame required for investigations, the collection of certain evidence and investigative report, and general new policies and procedures to be implemented in nursing homes to catch instances of abuse.

Historically, Maryland nursing homes have been able to avoid costly lawsuits brought by residents or their family members by including arbitration clauses in the pre-admission paperwork that is presented to residents prior to their admission. By signing an arbitration clause, a nursing home resident gives up their right to a trial by jury, and agrees to resolve any dispute that may arise between the parties through binding arbitration.

While in theory arbitration may not sound like a bad thing for nursing home residents, by agreeing to arbitration, nursing home residents give up important rights and get little to nothing in return. That being the case, it is not surprising that long-term historical data shows that nursing homes fare better in arbitration than they do in traditional courts.

For the past few years, nursing home arbitration contracts have been the subject of much debate. During the Obama Administration, nursing home arbitration contracts were disfavored, and those nursing homes that included these clauses in their pre-admission paperwork were ineligible for federal funding. However, more recently that policy has been stepped back, and nursing homes have seized the opportunity, and have started to rely on arbitration clauses once again.

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Study after study has shown that one of the root causes of Maryland nursing home abuse and neglect is understaffing. Federal regulations require that a Registered Nurse is on staff seven days a week for at least eight consecutive hours a day. And in general, the fewer qualified staff members a nursing home has, the more work each staff member must take on. Without a registered nurse on staff, the level of care a nursing home can provide is greatly limited. At some point, overworked employees face a reduced ability to perform the functions of their job with the patience and care that is required.

According to a recent industry news report, a few weeks ago the Center for Medicare and Medicaid Services (CMS) issued a new rule that will increase the agency’s oversight of nursing homes in an attempt to lower the number of homes that operate with reduced staffing levels. States have always been required to survey nursing home staffing levels. However, under the old rule, only 10% of those surveys had to be conducted during the weekend and off-peak hours. However, the new rule requires that state conduct 50% of surveys during weekend and off-peak times.

The new rule uses payroll-based journal data to identify the 20% of nursing homes in each state with the lowest level of staffing on the weekends and during off-peak hours. Once the 20% in each state is identified, the CMS will provide the names of the facilities to state agencies. Each state will then be responsible for following up with additional surveys. If a facility remains out of compliance, it will be sanctioned accordingly. Understaffing can also result in a nursing home receiving a low star-rating.

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As the average lifespan in America continues to increase, more and more families will need to rely on Maryland nursing homes to provide care for their aging loved ones. Indeed, nursing homes offer a necessary service; however, reports have recently come to light that nursing home abuse and neglect are rampant. Perhaps more alarming are the results of a recent government study indicating that of all the cases of nursing home abuse requiring hospitalization, 28% went unreported until the resident arrived at the hospital.

Instances of nursing home abuse and neglect are underreported for several reasons. One reason is that many residents are embarrassed to report what happened to them, or fear that they will be seen as troublesome by family members. Another reason is that the residents who are victims of abuse or neglect are often not in a condition to articulate what they are experiencing, and in some cases, residents have no one to report the abuse or neglect to.

According to a recent industry news source, the Centers for Medicare & Medicaid Services proposed a new regulation that would impose significant monetary fines upon employees of skilled nursing facilities who fail to report abuse, neglect, or other crimes within a certain period. Not only would the new regulation require an employee to report abuse or neglect that was witnessed, but it would also require an employee to report a “reasonable suspicion” that abuse or neglect was occurring. The idea behind the newly proposed regulation would be to encourage employees in these facilities to speak up on behalf of the residents who are the victims of abuse or neglect.

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Earlier last year, the current administration rolled back certain regulations that the Obama administration put into place regarding the issuance of Civil Money Penalties (CMPs) to nursing homes that were found to have provided inadequate care to residents. Essentially, the regulations allowed for the federal government to fine nursing homes that were not in compliance, including Maryland nursing homes.

Those in favor of the rollbacks claimed that the additional regulations took caregivers’ attention away from residents, requiring that they focus on meeting the regulatory framework set forth by the lawmakers. However, in reality, it seems as though the rollback of the previous regulations has merely allowed for nursing homes to act with impunity as it relates to the level of care they provide to residents.

According to a recent news article, 17 state attorneys general – including those in Washington, D.C. and Virginia – authored a letter to the Trump administration. The letter discusses the importance of senior care, noting that by 2060, the number of people dependent on skilled nursing facilities is expected to double. This means that one in three people will find themselves in a nursing home at some point in their life. Given the fact that about 35% of all nursing homes were cited for a violation of the quality of care being provided to residents, these figures are alarming to say the least.

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Tens of thousands of cases are filed in Maryland courts each year. To help the court system handle the large number of cases, procedural rules have been implemented to streamline the process and to ensure that only diligent plaintiffs with legally sound cases are permitted to have their cases heard by a judge or jury.

One of the major procedural rules that courts require plaintiffs to follow is that a case must be filed within a certain amount of time, as outlined in the jurisdiction’s statute of limitations. If a plaintiff fails to file a case before the applicable statute of limitations expires, the court will be left with little choice but to dismiss the case, leaving the plaintiff with no avenue of recovery.

Over the past decade, states have begun to enact stricter requirements for many personal injury cases, especially medical malpractice cases and nursing home abuse and neglect cases. Indeed, according to a recent news article, West Virginia lawmakers have recently drafted and passed a bill that makes filing lawsuits against nursing homes much more difficult. Under the new law, the state’s statute of limitations was reduced from two years to one year. In addition, cases against nursing home facilities can only be filed in the county in which the nursing home is physically located.

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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.

The 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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