Articles Posted in Nursing Home Legislation

Most seniors in the United States are not financially independent, and at least partially rely on federal programs to help them to pay for health care, housing, and other expenses. Because the federal government finances so much of the senior care in the U.S through the Medicare and Social Security programs, the Federal Government has control over the quality of care given to seniors who are patients at facilities that accept Medicare payments. The federal government often uses this regulatory power to require nursing homes to provide better care for their patients.

The Centers for Medicare and Medicaid Services, an administrative branch of the Federal government, recently released guidelines for nursing home care to address two areas of concern that have arisen in the past few years. Specifically, the CMS guidelines address issues with overcrowding in nursing homes and the lack of appropriate infection control measures being taken to protect patients and residents from infection. These new sets of guidelines wil go into force in October 2022.

Our national experience addressing the Covid-19 pandemic brought problems in nursing homes to the forefront of Americans’ attention. Overcrowded rooms, in conjunction with poor infection control measures, resulted in nursing homes becoming a hotbed for infection during the initial phase of the pandemic. These experiences have taught public health experts lessons, which are reflected in the new guidelines. The CMS established that nursing homes are required to have an infection control specialist staffed onsite at the nursing home for at least 8 hours per day. Additionally, the guidelines encourage nursing homes to limit occupancy in rooms to two residents per room. If properly followed, these new guidelines should protect nursing home residents from avoidable infection.

The last two years have been extremely difficult for nearly everyone in the medical and caregiving fields. The nursing home industry has been hit especially hard. Nursing homes nationwide have had to deal with the effects of a global pandemic that targets older individuals, while workers from the top to the bottom of the medical field have been experiencing increasing levels of burnout. As a result of the increasing demand for medical workers and assistants, along with the dwindling supply, nursing homes throughout the country have been experiencing severe staffing shortages. The AARP (formerly known as the American Association of Retired Persons) has started a lobbying effort in Virginia in an attempt to get the state government on board with minimum staffing and sanitation standards for nursing homes in the post-pandemic era.

According to a press release detailing the AARP’s efforts to lobby the Virginia Legislature, long-standing and well-known issues surrounding nursing home care have gotten to a point where they must be addressed. The pandemic has brought long existent staffing issues in nursing homes to the forefront of public attention. Nursing home staff have been chronically undertrained and underpaid for decades, though the increases in stress and difficulty from the job brought on by the pandemic have exacerbated staffing shortages. While the free market can help solve staffing and other issues in many industries, the nursing home industry is unique because the federal and state governments pay for the majority of nursing home care in the U.S. through the Medicare and Medicaid social programs.

The AARP is encouraging the state and federal governments to step in with legislation that requires nursing homes to meet minimum staffing and training standards for their residents. Specifically, the group is urging the legislature to set a minimum staff ratio that must be met for a nursing home to operate, as well as increased training in infection control and sanitation. According to polling mentioned in the press release, the vast majority of Virginia voters approve of the requested changes, and the pressure is now on lawmakers to pass legislation to meet voter demands and improve the conditions of nursing homes within the state.

Often when an individual is injured or mistreated in a nursing home, they have already signed away their rights to bring a lawsuit. Instead, depending on the language of the contract they signed when entering the nursing home, they are required to arbitrate all claims brought against the nursing home. Arbitration is a form of alternative dispute resolution, where an arbitrator—instead of a judge—decides the outcome of the dispute and how much money the nursing home must pay.

A recent federal bill would forbid nursing homes from forcing residents to agree in advance to arbitration in cases where lawsuits are brought against the nursing home for inadequate and a lack of care. The bill would also require a 24-hour nurse to be available at nursing homes, along with requiring an infection prevention and control specialist. Nursing homes receive most of their financing through Medicaid and Medicare, meaning they must follow state and federal regulations—including this bill if it were to be passed by Congress. While it is unclear now whether this bill will be passed, it would provide nursing home residents with a mechanism to bring a lawsuit if they are injured or mistreated while living at a nursing home.

Should Nursing Home Residents Sign Arbitration Agreements?

While arbitrating nursing home disputes may not seem terrible for either party, it often limits the settlements plaintiffs will receive, as compared to a jury. An arbitration clause, literally forces the resident to arbitrate instead of suing the home—regardless of the allegations. While arbitrators are often impartial and will ensure the plaintiff’s claims are adequately heard, bills like the one being discussed now give residents the opportunity to bring a lawsuit if they have been neglected or abused. This is better than forcing everyone to bring all claims in front of an arbitrator.

Over a year into the COVID-19 pandemic, some states are proposing—and passing—reforms to address the issues prevalent in Maryland nursing homes and those across the country. New York state recently passed a law set to be signed into law that would require for-profit nursing homes to spend at least 70% of revenue on direct patient care. In addition, any profits over 5% would be given to the state. The law would direct 40% of a nursing home’s budget to be spent on staff who work directly with residents. A law professor commented that a state immunity law that was recently repealed had allowed homes to engage in practices that created “unreasonable risk to residents.” One family member whose husband, a Navy veteran, was a resident in a nursing home said that he had not been given a shower in weeks.

Maryland lawmakers have considered a reform bill that would impose additional requirements on out-of-state nursing home purchasers, along with other reform bills. The bill would require state inspections after owners from outside of Maryland purchase nursing homes in the state. The bill would require unannounced inspections three and six months after the purchases are made.

Nursing home residents in Maryland continue to be at risk for abuse and neglect by staff members, medical providers, and other residents. Abuse may be physical, sexual, emotional, or financial. Signs of abuse can vary but could include unsanitary living conditions, broken bones, unexplained injuries, a history of repeated injuries, fear of certain people, bedsores, missing property, and missing funds. Neglect can be more difficult to detect in some cases, but it could include a lack of mobility, poor personal hygiene, and psychological distress.

New York state recently passed a law that revokes the immunity of nursing homes from liability for decisions concerning the COVID-19 pandemic, according to a recent article. Over 15,000 residents and staff died in nursing homes, assisted living facilities, and other long-term care facilities in that state. New York had originally passed a bill granting immunity to nursing homes during the pandemic, preventing residents and their families from suing nursing homes in court for an injury or death based on negligence. Meanwhile, Maryland has considered increasing immunity for COVID-related injuries.

In January of this year, the state Senate introduced a bill that would expand immunity from claims based on COVID-19. As introduced, it would protect anyone who acts in compliance with certain regulations, statutes, and orders (including Maryland nursing homes and long-term care facilities). However, the bill would not protect people who act with gross negligence or intentional wrongdoing. The Senate bill remains pending, and a similar bill was introduced in the House. Proponents’ of New York’s law argued that the immunity protected nursing homes that made decisions even in bad faith.

Are Nursing Home Immune from COVID-19 Claims?

Under Md. Code Ann. Pub. Safety section 14-3A-06, a healthcare provider is shielded from liability if the healthcare provider acts in good faith while there is a “catastrophic health emergency” proclamation. This law was in place before the COVID-19 pandemic. Even if Maryland’s proposed bill becomes law, facilities must follow state and federal guidelines to receive immunity. As of March 1, 2021, under a Maryland directive, licensed nursing homes must comply with the guidance on COVID-19 issued by the U.S. Centers for Disease Control and Prevention, U.S. Centers for Medicare and Medicaid Services, and the Maryland Department of Health. If a resident or staff member tests positive for COVID-19, all residents who have not tested positive for COVID-19 within the previous 90 days must be tested. Maryland has had more than 30,000 COVID-19 cases in nursing homes and over 3,500 deaths in nursing homes, group homes, and assisted living facilities.

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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