Articles Posted in Nursing Home Legislation

October is Long-term Care Residents’ Rights Month, a time to celebrate the rights and dignity of people living in nursing homes. Thanks to strong legislation and regulations, nursing home residents have a legal guarantee of certain protections against abuse and neglect. Residents do not give up their rights as adult citizens solely by virtue of entering a nursing home environment. All nursing homes participating in Medicaid and Medicare must respect the rights covered by this law.

Congress passed the 1987 Nursing Home Reform Act after a study conducted by the Institute of Medicine found alarming rates of inadequate care, abuse, and neglect in nursing homes around the country. The Institute recommended a wide range of reforms that became law as part of a budget bill. The law aims to protect the physical, mental, and psychosocial wellness of nursing home residents by requiring nursing homes to provide certain services and creating a “Resident’s Bill of Rights.” Nursing homes must comply with the law in order to remain eligible to accept Medicare and Medicaid payments. Laws passed in 2010 expand on the rights protected by the 1987 law.

Nursing homes are required by this law to provide each resident with a personalized comprehensive care plan, along with periodic assessments of their care. They must provide nursing and social services, as well as rehabilitation and the ability to dispense prescription medications. Facilities with more than 120 beds should employ a full-time social worker to assist residents.

The Residents’ Bill of Rights lists numerous rights protected by federal law. These include:
– Freedom from abuse, neglect, or restraint;
– Privacy;
– Dignity;
– A clean and safe environment;
– Accommodation of particular medical and other needs;
– Communication and visitation with others;
– Participation in one’s care plan and frequent updates regarding one’s health condition;
– Complaint without fear of retribution;
– Control of one’s own finances, if possible; and

– Refusal of treatment when desired.

The Nursing Home Reform Act created an enforcement procedure that begins with routine inspections by state governments to review a nursing home’s certification. Surveyors may also investigate specific complaints or allegations, reviewing the amount of danger faced by residents and the likelihood that the alleged incident might occur again. One serious consequence of non-compliance with the law involves loss of Medicare and Medicaid eligibility. The law allows penalties ranging from remedial training for staffers to state management of the nursing home or outright termination of the home’s provider agreement with the state.

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As our attorneys have discussed in a related Baltimore nursing home lawyer blog post, pressure sores, or decubitus ulcers, are a rampant nursing home and assisted-living problem plaguing around one million people across the country every year, with nearly 60,000 deaths from complications of the advanced stages of pressure sores. Decubitus ulcers are sores that are entirely preventable, with proper nursing home care.

Pressure sores often develop at nursing home or assisted-living facilities when patients are elderly, or have limited mobility and rest for long periods of time without moving positions, which applies pressure to specific areas of the body and cuts off blood circulation, leading to skin deterioration or breakdown.

With proper nursing home staff attention, pressure sores can be prevented before they develop into the four stages of pressure sore development, often leading to soft tissue loss, deep painful craters, damage of joints and tendons and massive infections like sepsis or osteomyelitis, which can lead to nursing home injury or even death.

Other contributing pressure sore factors include dehydration, poor nutrition and lack of vitamins and minerals, as well as understaffed nurses, and health care staff without proper bed sore prevention and treatment training, which can lead to nursing home negligence—where elderly or immobile residents are left to sit for long periods of time without being moved, without having soiled undergarments changed, or without properly being cared for.

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In a recent blog, our nursing home lawyers based in Baltimore, Maryland discussed the Nursing Home Reform Act of 1987, (NHRA) and the standards and services legally available to residents under the act, to prevent nursing home negligence, abuse, or substandard care.

The main objective of the NHRA is to make sure all nursing home residents are entitled to receive quality care and attention in a nursing home environment that improves and maintains their highest mental and physical health and psychosocial well being. To secure that quality care is provided in homes, the NHRA requires that homes provide each resident with certain services, and a Bill of Rights.

As our Baltimore nursing home attorneys reported previously in a blog, nursing homes receive Medicare and Medicaid payments for long-term resident care only if they receive state certification to be in compliance with the NHRA requirements. To monitor whether or not nursing homes meet the requirements, the act established a certification process that requires each state to conduct surveys in the home that are unannounced and poised at irregular intervals, at least once every 15 months.

The surveys reportedly focus on the residents’ quality of care, rights, quality of life, and the home’s provision of resident services. Targeted surveys are also performed, with resident interviews, and any nursing home negligence or other resident complaints against the home are required to be investigated.

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As our Baltimore, Maryland nursing home injury attorneys discussed in a recent blog, under the federal Nursing Home Reform Act of 1987, (NHRA), all residents living in nursing homes are entitled to receive quality care and attention in an environment that improves and maintains their highest physical, mental health and psychosocial well being.

According to AARP, in 1986, Congress ordered a nursing home study to be performed by the Institute of Medicine, IOM. The study reportedly revealed widespread nursing home negligence, abuse, and substandard care. The IOM proposed massive reforms, a large majority of which became law in the passing of the NHRA, which is part of the Omnibus Budget Reconciliation act of 1987, (OBRA).

The NHRA secures quality care by requiring certain nursing home services to every resident and by establishing standards for these services. Required services include, periodic assessments of each resident, pharmaceutical, rehabilitation, and social services, a care plan for each resident that is comprehensive, and the services of a full-time social worker if there are more than 120 beds in a nursing home.

A Bill of Rights was also established under the NHRA to secure quality care for each resident. Under the Resident’s Bill of Rights, a resident has the right to freedom of nursing home neglect, abuse and mistreatment, and the right to treatment that is free from physical restraints. Under the act, residents and patients also have the right to privacy, the right to be treated with dignity, the right communicate freely, the right to have medical, social, physical and psychological needs accommodated, the right to exercise self determination, and the right to participate in reviewing their own plan, with full disclosure in advance about any changes in treatment, care, or status change within the nursing home. Nursing home residents are also entitled to communicate any problems without experiencing any discrimination or retaliation.

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As our Baltimore nursing home attorneys reported in a recent blog, fighting forced arbitration in nursing homes has long been a problem, as many residents and families unknowingly sign away their right to seek justice when filling out complicated contracts for long-term resident care.

According to a recent report by the American Association for Justice (AAJ), systemic nursing home abuse and neglect is not revealed in many homes due to nursing home arbitration clauses found in the fine print of admission contracts—that residents and their families rarely see, not realizing that they are signing away their rights to access court.

The Fairness in Nursing Home Arbitration Act of 2009 was introduced last year by Representative Linda Sanchez of California, and would eliminate forced arbitration clauses in nursing home and long-term care contracts. The act would reportedly provide that a pre-dispute arbitration agreement between a long-term care facility or nursing home and a resident or family member acting on the resident’s behalf, would not be valid or specifically enforceable.

According to recent news that our Baltimore, Maryland nursing home attorneys have been following, thousands of low-income nursing home residents in the state of Maryland will reportedly have millions of dollars of debt paid, after a class action nursing home lawsuit involving Medicaid payments has reached a settlement—the second-largest settlement in state’s history.

Maryland nursing home residents reportedly filed the lawsuit in 2005, claiming that the Maryland Department of Health and Mental Hygiene was in violation of both state and federal laws by confirming that the state could cover the residents’ nursing home costs with Medicaid, a federal and state program for the poor. The lawsuit reportedly claims that the department didn’t factor in the health care cost that each resident totaled while waiting to qualify for Medicaid coverage in the homes–that led to a significant amount of debt.

According to the U.S. Department of Health and Human Services Centers for Medicare and Medicaid Services (CMS), the U.S. federal agency that administers Medicaid, states are required to factor in this kind of debt when computing the income of nursing home residents, but had been reportedly calculating the cost incorrectly. States have been requiring recipients of Medicaid to make co-pays, regardless of their previous debts.

Now Medicaid managers for the state of Maryland and other states will stop requiring Medicaid co-pays from individuals who accrued debt while living in nursing homes while waiting for Medicaid eligibility. The patients will reportedly be able to use their own money to pay the past-due nursing home bills, and the state will make up the difference by paying the nursing homes directly.

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In recent news, that our Hartford, Maryland Nursing Home Injury Attorneys have been following, a nursing home abuse lawsuit has brought to light the problem of unreported sexual abuse incidents in Kentucky nursing homes.

According to the Lexington Herald-Leader, Mae Campbell, an 88-year old, was sexually abused two times while being a resident at Hazard Nursing Home. Campbell suffers from Alzheimer’s disease, and was reportedly sitting in a hallway last year, in view of other staff members and a nursing supervisor, when a male nursing home resident sexually assaulted her by ejaculating onto her face. She was reportedly sexually abused three months later by another male resident of the home who had allegedly entered her room to perform a similar sexual act. The nurse on duty was told by her supervisor not to discuss the incident with anyone because Campbell had not been harmed.

Under Kentucky law, staff members and officials of nursing homes are legally mandated to report nursing home neglect or abuse. The Cabinet for Health and Family Services issued the home a Type A citation, claiming that Hazard Nursing Home did not follow state regulations and failed to protect Campbell from sexual contact that was unwanted, failed to protect her health and safety as a resident, failed to report the sexual abuse allegations to the necessary state agencies, and failed to investigate the sexual abuse allegations thoroughly.

The Herald-Leader reported that Campbell’s sexual abuse was only discovered after depositions in a wrongful death case led to a former nurse’s aide’s description of Campbell’s sexual assault, where the former employee claimed that she stopped working at Hazard Nursing Home after the incident, as she thought the home should have protected Campbell better. Another former nurse also admitted to witnessing Campbell’s other assault. She was told not to discuss it with anybody—because Campbell had not been harmed.

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Our Washington D.C. Nursing Home Abuse Attorneys recently discussed the topic of chemical restraints in a blog, and the unnecessary use of antipsychotics in nursing homes. The Food and Drug Administration (FDA) estimates that around 15,000 nursing home deaths occur every year from the off-label use of antipsychotic medications that are unapproved by the FDA.

Center for Medicare Advocacy Senior Policy Attorney Toby Edelman, recently released a statement in reaction to a Senate Special Committee on Aging hearing, claiming that nursing home residents die every day from the inappropriate use of antipsychotic medications given to residents who have no diagnosis of psychosis. Edelman claims that nursing home facilities are violating the Controlled Substances Act and the 1987 Nursing Home Reform Law, by failing to provide the residents with proper medical attention, and physicians who are available to treat them 24 hrs a day.

According to the statement, under the 1987 Nursing Home Reform Law, every resident must be under the care of a physician, and each nursing home must provide a physician for medical care in case of an emergency, with another physician on-call. Edelman claims that nursing homes and long-term care pharmacies have long been relying on the practice of “chart orders,” for medications, where nurses assess the nursing home resident’s changed condition, and contact the physician—who then prescribes pain medication recommendations.

The Drug Enforcement Administration (DEA) has reportedly begun to enforce the rules and policy of the Controlled Substances Act, requiring physicians to write and sign prescriptions, sending nursing home and nursing home pharmacy industries into a frenzy, claiming that without these practices, residents will not receive the pain medication they need.

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In recent Maryland nursing home injury news, more than 24 hospitals in the state of Maryland are taking part of the Maryland Patient Safety Center’s (MPSC) SAFE from FALLS initiative, a program providing state facilities with a “road map” to prevent patient and resident falls—to reduce personal injury and harm.

The Maryland program, based on an original program in Minnesota, was created through the Maryland legislature, with the Delmarva Foundation and the Maryland Hospital Association chosen as operators, to work to decrease nursing home and healthcare falls overall, and decrease the severity of resident falls, especially falls with personal injury.

The SAFE from FALLS “road map” was developed by studying acute care, home health care, and nursing home care—the three environments that the project is aiming to help. The program was then tested in these healthcare settings during 2008 and 2009. Today there are reportedly 50-60 nursing homes using the program’s road map, with 30 hospitals and 12 home health agencies as well.

According to the Centers for Disease Control and Prevention, every year, an average 100-bed nursing home reports around 100-200 nursing home falls. Nearly 1,800 people living in nursing homes reportedly die in this country every year from injuries related to nursing home falls. Those nursing home residents with falls that are non-fatal can suffer serious nursing home injuries.

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Our Maryland Nursing Home Abuse Attorneys recently wrote a blog about a series of violent elder abuse incidents that occurred in Veterans nursing homes in the state of Texas, as published in the Dallas Morning News.

The Dallas newspaper has recently reported that after publishing the articles last month, legislators in the Senate have now taken notice, and raised questions about the safety and management of the state-owned veterans nursing home facilities this week, with two Senate committee hearings.

Last month, the Dallas Morning Star found that the criminal investigation of two former nursing home workers, accused of nursing home abuse, were stalled for two years because of conflicts between the state inspectors, police, and nursing home administrators.

When the police reportedly looked into the nursing home abuse allegations in 2007, police officers defaulted to the state inspectors. In March, felony charges were finally filed against the former nursing home employees, accusing them of harming two residents in the separate 2007 incidents.

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