Articles Posted in Selecting a Nursing Home

Arbitration clauses have become more and more common in many types of contracts between consumers and businesses over the last 50 years, However, the dramatic increase in the use of arbitration clauses in medical care agreements should be of special concern to consumers and their advocates. By agreeing to an arbitration clause, a patient or their family may be giving up their right to sue the other party in state or federal court and instead assenting to resolve disputes through what is known as binding arbitration. Binding arbitration is a process that closely resembles a judicial proceeding, although the “judge” of an arbitrated dispute is simply a private party, and the court rules and procedures that are used in judicial proceedings may not apply.

Why Do Providers Propose Binding Arbitration, and Why Would Consumers Agree to It?

Binding arbitration is promoted by companies and industry groups as a simplified way of resolving disputes that could get out of hand if they were processed through a full-fledged judicial proceeding. Complainants are legally entitled to a fair process through arbitration, and state and federal laws are applied to their claims.

In reality, the differences between an arbitration proceeding and a judicial proceeding almost always favor the large company, with consumers and patients receiving the short end of the agreement. A recent New York Times article discussing the use of arbitration agreements in nursing home contracts notes that although agreeing to binding arbitration cannot be mandatory for a prospective patient, the agreements are often structured to hide that fact. Many consumers agree to arbitrating potential disputes because they don’t know they have the right to refuse it.

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When we talk about nursing homes, we must differentiate between whether we are referring to a short term stay related to medical care, such as in a rehabilitation care facility, or rather we are discussing a residential stay. The latter, which involves living in a nursing home or assisted living facility, is properly referred to as “long term care.”

Many people mistakenly believe that Medicare will pay for this long term care because Medicare willpay for skilled rehabilitation care within a Skilled Nursing Facility (SNF). However, there are strict requirements for when Medicare benefits will cover skilled care within a SNF. If you meet certain eligibility and Medicare plan requirements, then you may be able to have up to 100 days of care (per benefit period) in a SNF covered by your Medicare Plan. You will want to check with your plan, as a co-payment may be required after a certain number of days.

Medicare will cover skilled care only if all of the following are true:

  • You have the Medicare Part A (hospital insurance);
  • You have days left within your current benefit period available to use;
  • You have a qualifying hospital stay– more than 3 days excluding discharge (and with other limitations), and you enter the SNF within 30 days of discharge;
  • Your doctor orders the services of a SNF, which require the skills of trained professionals, such as occupational therapists, registered nurses, speech therapists, etc.;
  • You require the skilled care on a daily basis, and those specialized services are such that they can only be conducted on an inpatient basis;
  • You need the skilled services for a medical condition that was either (1) treated during your qualifying 3 day hospital stay; or (2) began while you were already staying in a SNF for a medical condition arising out of the hospital stay. (For example, the original stay in the SNF was for surgery, but you suffered a stroke while in the SNF);
  • The skilled services must be both reasonable and necessary, in terms of the diagnosis or treatment for your condition; and
  • You can get these skilled services in an SNF that is certified by Medicare.

It is important to keep in mind, however, that once a patient is eligible for SNF coverage, it does not mean that coverage will continue. If a patient refuses his or her daily skilled treatment or care, they may lose their Medicare SNF coverage.

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A recent New York Times article examined some of the differences in services between for-profit and non-profit nursing homes. Some research over the past few decades has suggested that for-profit facilities, by seeking to minimize expenses, may be at a disadvantage to nonprofit facilities in terms of quality of care. The article cites a handful of academic papers in support of this argument, which is certain to generate controversy for its criticism of the private sector. As nursing home injury attorneys, we are interested in whether a nursing home’s for-profit or non-profit status affects its duty of care to its residents. Under federal laws and the laws of the state of Maryland, it makes no difference when it comes to a nursing home’s professional obligations.

Eduardo Porter, writing for the New York Times, discussed a study performed in 1984 by two researchers, Bonnie Svarstad and Chester Bond, at the University of Wisconsin-Madison’s School of Pharmacy. The paper, entitled “The Use of Hypnotics in Proprietary and Church-Related Nursing Homes,” is not currently available online, but was cited in a 1988 book, The Nonprofit Economy, by the economist Burton Weisbrod. Svarstad and Bond examined the use of sedatives at for-profit “proprietary” nursing homes and non-profit nursing homes affiliated with churches. They reportedly found that both types of facilities prescribed drugs for their patients at about the same rate, but that the proprietary facilities prescribed doses that were, on average, around four times larger than the dosages at the non-profit facilities. Weisbrod interpreted these figures in stark economic terms, arguing that medications are less expensive than staff, and it is more cost-effective to sedate a patient than to employ caregivers to offer individual attention.

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People involved in legal disputes may choose, instead of litigation, to submit their case to a process like mediation, where a neutral person tries to help all sides in a dispute reach a mutually agreeable settlement; or arbitration, where one or more neutral individuals hear arguments from all sides to a dispute and propose a solution. Arbitration can be non-binding, meaning any party can reject the arbitrator’s decision and proceed to litigation; or binding, in which case no party may challenge the arbitrator’s decision in a court of law. These practices can offer an efficient means for settling grievances, but in some cases, people who might prefer litigation find themselves contractually bound to arbitration, often binding. Maryland and federal law generally allow nursing homes to include arbitration provisions in their contracts with residents with some limitations. Anyone signing admission papers for a nursing home, for themselves or someone else, should review them very carefully.

NBC News recently reported on a man who checked his father into a nursing home after his father suffered a stroke. When his father died due to alleged negligence, the man sought advice as to his legal rights. He learned that an arbitration agreement was among the many papers he had signed during his father’s admission, thus barring him from the courthouse.

Arbitration can be an expensive process for individuals, with the arbitrator’s fees often split equally between the parties. Arbitrators are often former attorneys or judges with high hourly rates, unlike judges in the judicial system, whose paycheck comes from taxpayers. The process can lack the transparency of the court system, where most documents are public record. Arbitration is a private transaction, occurring behind closed doors. For reasons that remain a subject of dispute, studies cited by NBC have shown that arbitrations result in fewer monetary awards for patients or their families than litigation.

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As our Baltimore, Maryland accident lawyer blog recently reported, the family of an elderly nursing home resident whose wrongful death lead to a nursing home abuse and negligence lawsuit, was awarded $91.5 million earlier this month, after a Charleston, West Virginia jury found Heartland of Charleston nursing home and its corporate owners guilty of negligence—a verdict that the nursing home owners are likely to appeal.

According to the lawsuit, in September of 2009, Tom Douglas placed his mother Dorothy, who suffered from dementia, Parkinson’s and Alzheimer’s disease among other conditions, in Heartland of Charleston nursing home temporarily—until there was room for her in a nearby facility that specialized in Alzheimer’s disease healthcare and treatment.

Before placing Douglas in the home, her son claimed that his mother had lived with he and his family, experiencing improved health conditions that included walking, speaking and even recognizing her own family members.

Three weeks after Tom Douglas placed his 87-year old mother into the nursing home he reportedly found out that she was confined to a wheelchair, and suffered from malnutrition, and dehydration. By the time she was transferred to Heritage Center, the nursing home specializing in Alzheimer’s Disease healthcare, Douglas was reportedly unresponsive, had lost fifteen pounds and suffered such severe dehydration that she died the following day after her nursing home transfer.

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In an effort to help seniors and families better evaluate and choose the right nursing home, the federal government has recently improved the Nursing Home Compare website, according to a recent article in Forbes.

As our Maryland nursing home injury blog has previously discussed, the Nursing Home Compare website is a web service listing around 16,000 Medicaid and Medicare-certified nursing homes around the county on a Five-Star Quality rating system—that compares and contrasts the quality standards on both short-term and long-term care.

The newly improved Nursing Home Compare website will reportedly feature 21 new criteria that help to measure the quality of care each resident will receive at different nursing homes and facilities around the country. The government will now include valuable experience from nursing home patients in both short-term and long-term care facilities, making it available on the website. It will make any complaints about a nursing home available, such as nursing home negligence or abuse, providing the necessary information.

The Nursing Home Compare’s new criteria will replace a set of 17 criteria and will focus on the specific and crucial issues affecting nursing home residents today, like pressure sores, infections, nursing home falls, pain, and general health and well being. The new criteria will also discuss the different percentages of nursing home residents who have experienced physical restraint, claim to have experienced pain that is severe to moderate, and who have been given vaccine for pneumonia.

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A recent nursing home negligence lawsuit, was filed against an Illinois nursing home after the children of a female elderly resident accused the home of failing to notify them of their mother’s death for a four-month period.

According to the lawsuit, that our Baltimore nursing home lawyers have been observing, Lovera Staples was admitted to Ridgeview Nursing Home in December of 1991 with multiple disabilities that required healthcare assistance with basic activities like eating, walking and bathing.

Staples’ daughter, Mary, claims that a few days after she last visited her mother, she received a call from a nursing home employee claiming that her mother was in the hospital. Mary visited her mother in the hospital, and was informed the next day that she was released and returned to the nursing home.

Mary Staples claims that more than four months after her last visit, she called the nursing home to wish her mother a happy birthday, and the nursing home staff told her that there was no one living at the facility with that name. Staples and her brothers then went to the nursing home to find that their mother had actually died in the Saint Francis Hospital and the home neglected to inform them of her death. The body had reportedly been at the medical examiner’s office since her death, for four months.

The Staples family claim to have made arrangements to have their mother buried on the following day, and found out later that Cook County Department of Health removed the body from the morgue and buried her without the family’s permission. The Staples were told that the nursing home authorized the removal of the body.

The distraught family is reportedly seeking over $50,000 from the home, with claims of emotional stress.

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In a recent Baltimore nursing home abuse and neglect blog post, our lawyers discussed the Mickey Rooney’s recent role as elder abuse advocate, in his passionate testimonial before Congress last month, sharing his own experiences of elder abuse, and how the 90-year old was left without food, medication and had $400,000 of his life savings embezzled by a stepson and stepdaughter.

As Rooney told the Senate subcommittee, elderly financial abuse is a huge problem that happens to 3.5 million Americans every year, including him. According to MSNBC, a 2009 study performed by MetLife Mature Market Institute estimated that financial losses from elder abuses across the country are around $2.6 billion annually at the least. The study found that financial abuse of seniors is a hugely under reported problem with only one in six cases ever reported.

Elder financial abuse can take place anywhere—at a nursing home or healthcare facility, where a nurse or staff member abuses a resident by gaining money, jewelry, personal possessions or even power of attorney, or within families, where certain members feel they have entitlement to their parents, or grandparents’ money and estate and find opportunities to take control of it. Older and vulnerable people are also often taken advantage of financially by complete strangers, or con artists who befriend older people through random contacts, the Internet, or even over the phone.

According to Paul Greenwood, the head of San Diego County District Attorney’s Office-elder abuse prosecutions unit, elder abuse takes place in every community and could get worse in the next five to ten years as the baby boomer generation ages. Greenwood claims that in order to find out about abusers in the community, it requires important people like bankers, healthcare providers and church members to step up and report any suspected abuse that might indicate the financial exploitation of an elderly person or nursing home resident.

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As Maryland nursing home abuse attorneys, we recently read about the developments in a nearly decade-old case involving the abuse and rape of a 94-year-old female resident at a Palo Alto, California nursing home in 2002.

According to the Mercury News, 43-year-old Roberto Recendes recently pleaded guilty to one count of elder abuse, one count of sexual penetration by force, and also pleased guilty to an enhancement of inflicting bodily injury. Recendes is expected to be sentenced to 17 years in prison in December.

This 2002 California nursing home abuse case reportedly received national attention, when high school student Jorge Hernandez was arrested by the police in Palo Alto, and made to confess to the crimes. Hernandez was later cleared, due to DNA evidence.

In 2004, when Recendes was convicted of domestic violence charges, his DNA sample was taken. It was then later matched to the DNA found at the nursing home rape crime scene.

At the preliminary hearing for Recendes, an old girlfriend identified jewelry belonging to Recendes that was discovered at the crime scene of the rape, and a crime laboratory expert stated that two hairs found on the nursing home abuse victim’s blankets matched with Recendes’ DNA.

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Our Baltimore nursing home attorneys have been following the recent news release that the state of Maryland is slated to collect around $1.7 million in grants by the U.S. Department of Health and Human Services (HHS), to help disabled people, seniors, and their health care givers to better comprehend and explore their long-term health care options.

The Maryland grants are reportedly being distributed by HHS as part of a new program under the Affordable Care Act. HHS Secretary Kathleen Sebelius announced yesterday that under the act, around $68 million in grants will be awarded to states, tribal and community-based organizations, and territories across the country.

Sebelius stated that the Affordable Care Act will help to give individuals more power to make decisions about finding quality health care in nursing homes or rehabilitation facilities— to improve the level of care, and reduce the cost.

The national funds will reportedly be used for programs that will aim to help disabled people and the elderly and their families and caregivers to better comprehend their benefits under Medicaid and Medicare. The grant money is also intended to help seniors and disabled individuals to better understand their long-term health care options, including those that help people to remain with in nursing homes, and those to help ease the transition for people who are moving back to their home residents, after residing in a nursing home or rehabilitation facility.

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