Articles Posted in Nursing Home News

Across the country, approximately 1.4 million elderly or disabled individuals receive care in over 15,000 nursing homes. While many of these nursing homes take great care of their residents, a recent study from the U.S. Government and Accountability Office (GAO) finds that, unfortunately, nursing home abuse still occurs with some regularity. Because residents often have physical or mental disabilities and limitations, they are some of the most vulnerable to abuse. Maryland residents should be aware of potential issues of abuse when choosing a nursing home for themselves or a loved one.

The GAO’s report found that citations of nursing home abuse more than doubled between 2013 to 2017, with a particularly significant increase in severe cases of abuse. Importantly, the report also found gaps in the oversight of nursing homes. The Centers for Medicare & Medicaid oversee a program with state agencies to monitor nursing home safety, but their ability to do so may be limited for several reasons. First, state agencies who survey nursing home abuse typically do not note abuse and perpetrator time, meaning the Centers for Medicare & Medicaid may not have a complete picture of who is committing the abuse, or what type is most common. Second, when nursing homes report incidents, they typically lack vital information, which often delays state agencies’ investigations. And third, the GAO found gaps in the Centers for Medicare & Medicaid’s processes for referring incidents of nursing home abuse to law enforcement, which can slow down investigations and make it harder to end abuse in the homes overall. The GAO, finding these problems, also made recommendations to the Centers for Medicare and Medicaid on how they can fix them and improve the safety of nursing homes and the processes for dealing with abuse.

Cases of abuse in Maryland nursing homes, which can include medical neglect or physical, verbal, or sexual assault, can cause intense emotional distress and trauma for the victim and their families, not to mention medical bills for past and possibly continuing care. While the GAO’s report may hopefully lead to increased safety in Maryland nursing homes, there will, unfortunately, still be tragic instances of abuse. If tragedy does strike in a Maryland nursing home, state law allows the victim, or their family, to sue the home for negligence. The money won in a suit, while it can never undo the damage done, may help the recovery and healing process.

Recently, a national news publication reported on a disturbing assisted living center abuse case. The case highlights issues that many Maryland nursing home abuse victims and their families experience.

According to the report, police investigated an assisted living facility after they received a call from a person who stated that they saw an egregious video of two women with dementia fighting posted on social media. The video shows a staff member pushing one resident while another resident is lying on the floor. The investigation revealed that, although the altercation did not amount to a “fight club,” as initially reported, the events were alarming and deviated from appropriate standards that nursing homes are expected to conform to. The employees permitted the residents to fight with each other while an employee physically assaulted another resident. Police conceded that the investigation was challenging because the victims are experiencing the symptoms of dementia and, therefore, cannot adequately articulate the events. The employees were terminated and are facing serious criminal charges.

In situations such as this, nursing homes and their employees often face civil charges in addition to criminal charges by residents and their families. In Maryland, nursing home abuse lawsuits are often steeped in allegations of abuse, negligence, malpractice, and premises liability. Nursing home abuse cases are typically the most disconcerting type of claim. These cases involve an intentional act or reckless disregard for the health and safety of the resident. Some examples of nursing home abuse are when a caretaker physically or sexually assaults a resident.

As the population ages, and life expectancy continues to increase, nursing homes are becoming a part of more and more Americans’ lives. As a result, Maryland nursing homes are caring for more residents than ever. Family members who place their loved one in a nursing home want to ensure that they are safe and being taken care of, but sometimes finances or other concerns force families to place loved ones in subpar institutions. Unfortunately, loved ones can suffer from nursing home abuse that often goes unreported. A common yet overlooked form of this abuse is food safety violations, which occur frequently in Maryland nursing homes and can cause serious illness, or even death.

A recent investigative report found that there are thousands of food safety violations in nursing homes across the country each year. According to a news article discussing the report’s findings, cockroaches, flies, mold, and mouse droppings are just a few of the unsanitary conditions found in nursing homes over the last three years. In fact, unsafe food handling was the third most frequent violation in nursing homes in 2018. That same year, 33% of nursing homes were issued citations for not safely storing, preparing, and serving food. And many of these instances are not just one-time mistakes: since 2016, approximately 33% of all nursing homes were cited multiple times for the same food safety violations.

These safety violations, while concerning in any kitchen, are of utmost concern in nursing homes because people over 65 are especially susceptible to foodborne illnesses. Unlike restaurants where a patron can get up and leave, nursing home residents often have no choice but to stay and eat in their institution. The result can be deadly: the report also found that, between 1998 and 2017, there were 230 foodborne illness outbreaks in long-term care settings such as nursing homes, which resulted in at least 45 deaths, 532 hospitalizations, and 7,648 people getting ill.

Incidents of Maryland nursing home abuse can be challenging to quantify because many victims are unable to report their injuries. Additionally, loved ones are often placed in subpar institutions because their families did not have the means or ability to evaluate the facility adequately. These factors, in addition to many others, have caused a rising rate of nursing home abuse incidents in Maryland.

According to a recent news report, the Centers for Medicare & Medicaid Services (CMS) launched a consumer alert feature on its website designed to warn people of nursing home violations. The CMS operates a website called “Nursing Home Compare,” which provides consumers with information about Medicare and Medicaid certified nursing homes in the United States. The website enables individuals to see whether a nursing home meets the minimum federal standards regarding things such as staffing, health, and safety. However, the website does not readily provide a way for people to discover any instances or allegations of abuse against a nursing home. In fact, a recent Senate report publicized a government finding of increasing nursing home abuse cases by facilities that rated as poorly performing but did not receive additional scrutiny.

The new alert intends to offer consumers a new and easy way to identify nursing homes with citations and other safety violations quickly. The alert will go live in October, 2019 and will flag facilities that had negative inspection reports on abuse in the past year or behaviors that could have led to harm in the past two years.

Arbitration has been a hot-button issue during the current administration. When President Trump took office back in 2017, there were strict rules set in place by President Obama that prevented nursing homes who used pre-admission arbitration contracts from receiving federal funds. The effect of this rule was to all but eliminate pre-admission arbitration contracts in Maryland nursing homes, as many received these types of funds.

Earlier this year, however, the administration was successful in amending the old rules to allow for nursing homes to include binding arbitration clauses in their pre-admission paperwork. Under the new regulations, nursing homes could use arbitration clauses as long as 1.) it is clear that the resident knew what they were signing, 2.) the document does not discourage residents from reporting non-compliance, and 3.) the arbitrator named in the agreement is neutral and mutually convenient. Nursing homes also had to allow residents a 30-day rescission period in which they could change their minds. While there were some protections for Maryland nursing home residents, most industry experts believe that this was a significant step backward.

According to a recent news report, in September, the U.S. House of Representatives passed the Forced Arbitration Injustice Repeal (FAIR) Act (the “Act”) by a vote of 255 – 186. The premise for the Act, as stated by one congressman, is that arbitration clauses have “seeped into just about every nook and cranny of our lives, including cell phone contracts, medical bills, employee handbooks, credit cards, nursing home contracts – you name it. Supporters of the FAIR Act recognize that the deck is “stacked against American consumers” and has been for far too long. One lawmaker described arbitration as, “just another tool for powerful corporate interests to avoid accountability.” The Act prohibits businesses, including nursing homes, from using binding, pre-dispute arbitration agreements. Under the Act, arbitration is allowed; however, the parties must agree after a dispute arises.

Maryland nursing home abuse takes a significant physical and psychological toll on the victims and their families. Recently, a national news outlet reported on a disturbing nursing home abuse case. Evidently, nursing home aides were accused of abusing a resident, recording the incident, and posting it on SnapChat. Maryland nursing home residents may face these situations, and families must be aware of this type of abuse.

Historically, people thought nursing home abuse to be mostly physical in nature. However, verbal abuse and public shaming through social media is a very real form of abuse in today’s society. Some common signs that a loved one is suffering from abuse or neglect are weight loss, changes in temperament, and unexplained injuries. However, sadly, many elderly victims suffer from severe memory loss or dementia and may not be able to recall the abuse. If a family suspects abuse and emergency medical treatment is needed, the family should contact police officials.

Additionally, the family should gather information to substantiate their claim of abuse or neglect. Loved ones should take photos, speak with other residents, and save anything that may contain evidence. Evidence gathering includes taking screenshots of any internet posts and keeping videos posted on social media platforms. Loved ones must be removed from an unsafe living arrangement. Finally, families should contact a Maryland nursing home abuse attorney to discuss their rights and remedies.

For decades, arbitration has been the favored way for Maryland nursing homes to resolves dispute made by residents and residents’ families. In part, this is because arbitration is confidential, meaning that the facility does not need to worry about the news of a resident’s injuries or suffering getting out. However, there is also evidence suggesting that nursing homes get better results in cases that go to arbitration. Arbitration is also less expensive, which primarily benefits nursing homes, as they are the party who is frequently engaged in litigation.

While arbitration is rarely, if ever, in the best interest of a nursing home resident, many residents end up signing agreements to arbitrate their claim. Often, prospective residents are presented with these agreements in highly stressful times when they may feel as though they have limited options. Other times, residents sign arbitration agreements because they do not fully understand the rights they are giving up by signing, and feel pressured to sign. Consequently, many residents who suffer abuse or neglect at the hands of their caregivers are devastated to learn that they cannot file a lawsuit in court, and must proceed through the arbitration process.

In 2017, the Center for Medicare and Medicaid, under the Obama administration, implemented a ban on arbitration agreements in pre-admission paperwork for all nursing homes that accepted Medicare or Medicaid. However, under a new rule scheduled to go into effect on September 16, 2019, nursing homes will once again be able to include arbitration contracts in their pre-admission paperwork.

The federal government is keenly aware of the fact that many Maryland nursing homes, as well as nursing homes across the country, routinely provide residents with an insufficient level of care. For this reason, each year, the federal government releases a report detailing the state of the country’s nursing homes. This June, Senators Casey (D-PA) and Toomey (R-PA) released a report entitled “Families’ and Residents’ Right to Know: Uncovering Poor Care in America’s Nursing Homes.”

The report begins by noting that aging citizens who live in nursing homes too often experience “outright neglect,” and that some residents are subjected to physical or sexual abuse. In an attempt to reduce the number of homes exposing residents to this neglect and abuse, the federal government implemented the Special Focus Facility (SFF) program. The SFF program seeks to identify the most problematic nursing homes across the country and increase supervision over these facilities. Once a facility is in the SFF program, it must be inspected no less than once every six months. Non-participants must be inspected once every 15 months.

The selection process for the SFF program focuses on those nursing homes that “persistently underperform in required inspections.” Under the SFF program, up to 88 nursing homes are selected, which amounts to less than .6 percent of all skilled care facilities in the United States. These facilities are referred to as “participants,” and the government releases the name of the facility to the public to assist potential residents in making important care decisions.

When someone is admitted to a Maryland nursing home or care facility, it is typically because they cannot perform the necessary daily tasks to lead a normal life. In many – but not all – cases, younger residents suffer from severe intellectual disabilities that render them incapable of providing consent for sexual intercourse. However, there have recently been reports of pregnancy among nursing home residents.

Last December, a nurse at an Arizona nursing home called the police in a panic when a resident unexpectedly gave birth. Apparently, this was the first time anyone at the nursing home knew that the woman, who was non-verbal due to a near-drowning accident, was pregnant. As it turns out, the pregnancy was the result of the resident being raped while at the nursing home.

One of the many questions this tragic situation raises is, how could the nursing home fail to notice that the resident was pregnant? The woman’s family wonders the same thing, and has filed a claim against the State of Arizona based on the state’s failure to provide sufficient oversight.

The United States Constitution guarantees all citizens equal access to our court system. However, courts have repeatedly held that the right of access to the court system, like many other important rights, can be waived. In theory, by signing an arbitration agreement a person gives up their right to file any future claim in the court system and agrees to resolve the claim through binding arbitration.

Arbitration clauses are used in many situations, including employment contracts, cell phone contracts, and, of course, nursing home contracts. However, there is a serious concern that those who are asked to sign an arbitration agreement – and, in the process, give up fundamental constitutional rights – do so unknowingly. Indeed, it is not uncommon for the victim of Maryland nursing home abuse to file a claim, only to learn for the first time that they must resolve the claim through arbitration

Despite the important rights that a person gives up when agreeing to arbitration, too often, arbitration clauses consist of a few paragraphs in a much longer contract. These contracts are usually written in small print and, at first glance, would seem to be unimportant. Thus, when consumers, nursing home residents, or employees are presented with these lengthy documents, they frequently overlook the arbitration clause, or at least fail to fully comprehend the importance of the document that they have just been asked to sign.

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