Maryland Nursing Home Lawyer Blog

How Could a President Biden Affect Nursing Home Regulations in Maryland?

November 4, 2020 | Lebowitz & Mzhen

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.

Challenges to Maryland Nursing Home Arbitration Agreements

October 28, 2020 | Lebowitz & Mzhen

Arbitration is a process in which the parties agree to have a private arbitrator decide the case instead of having the case decided by a court. Although arbitration has some advantages, it can put Maryland nursing home residents at a great disadvantage in many instances. For residents that agree to arbitration as part of their admission paperwork, arbitration agreements can be difficult to get out of—in part because the Maryland Uniform Arbitration Act provides that arbitration agreements are favored.

Are Nursing Home Arbitration Agreements Enforceable?

Whether a nursing home arbitration agreement is enforceable depends on the agreement itself and the facts surrounding the execution of the document. However, there are successful challenges to arbitration agreements. For one, the parties must consent to the arbitration. Consent to arbitration in the nursing home context generally occurs by signing an arbitration agreement as part of an agreement to be admitted to the facility. Because both parties must consent, in some cases, an arbitration agreement is not valid or enforceable because the resident (against whom the agreement is often enforced) did not sign the agreement. For example, a family member may have signed the agreement who did not have the authority to sign on the resident’s behalf.

Agreements may also be unenforceable because they are unconscionable. The language may be unclear or hidden, and unreasonably favorable to one party, leaving the other party with no choice but to accept. Under these circumstances, an agreement may also be unenforceable.

Maryland Nursing Home Neglect Puts Residents At Risk of Freezing to Death

October 23, 2020 | Lebowitz & Mzhen

When Maryland families move a loved one into a Maryland nursing home, they are entrusting the home and the staff to take care of their loved one, to keep them safe, healthy, and comfortable. Tragically, however, nursing home neglect is a significant problem in nursing homes across the country, and Maryland is no exception.

Nursing home neglect can take many forms. Perhaps staff members fail to check up on a sick resident every hour, as they are supposed to, and as a result, the resident suffers alone with no one realizing. Neglect can also be medical neglect—failing to take medical concerns seriously, or administer medication on time. Sometimes neglect can simply be leaving the resident alone when they are in dangerous circumstances.

For a tragic example of neglect, take a recent nursing home death where a 90-year-old woman was found dead outside her nursing home one morning. According to a local news article covering the incident, the resident allegedly got into an argument with a staff member at the nursing home one night and walked outside to get some space. The next morning, she was found dead on a bench on the property. Temperatures that night dropped to around 26 degrees, and it is suspected that the resident froze to death. The resident’s family was not even contacted by the nursing home—they found out of the death only through the local coroner’s office.

COVID-19 Aerosol Transmission Raises Question of Ventilation in Maryland Nursing Homes

October 14, 2020 | Lebowitz & Mzhen

The Centers for Disease Control (CDC) recently revised its COVID-19 guidelines to state that the coronavirus can be spread through aerosols, raising questions about the practices of Maryland nursing homes. It was previously known that the virus could be spread through respiratory droplets, such as when an infected person coughs, talks, and breathes. But experts now say that the virus is also spread through aerosols, which can remain in the air for hours and travel more than six feet. Experts still believe that the virus is mainly spread through respiratory droplets, but believe that airborne transmission does occur. Dr. Anthony Fauci stated that he was pretty confident that there was some airborne transmission of COVID-19.

Aerosols are microscopic droplets or particles and remain suspended in the air for some time, as opposed to respiratory droplets, which drop to the ground. Aerosols can accumulate in a confined space like a poorly ventilated room. Air purifiers and open windows can help to mitigate aerosol transmission by increasing ventilation within a confined space.

Some researchers have raised this issue in regards to nursing homes. Some research reported on one case of a COVID-19 outbreak in a nursing home with inadequate ventilation. One ward in a nursing home had a rate of 81% positive COVID-19 cases among residents, as opposed to no cases among the other six wards in the nursing home. Based on the low rate of the virus in the community, fast rate of transmission within the ward, the documented poor ventilation, and despite the use of surgical masks, the data suggested that the outbreak was caused by aerosol transmission due to inadequate ventilation.

COVID-19 Pandemic Exposing Dangers of Maryland Nursing Home Abuse and Neglect

October 6, 2020 | Lebowitz & Mzhen

It’s no secret that the COVID-19 pandemic has had an especially large impact on nursing homes, where tens of thousands of residents and staff members have gotten sick and even died. Because nursing homes combine communal living and vulnerable individuals, and because they often have high rates of abuse and neglect, the COVID-19 pandemic has hit those living in a nursing home particularly hard. In some homes, hundreds of residents have caught COVID-19, with dozens dying. The pandemic is thus raising concerns for Maryland families who have placed family members in nursing homes; many are fearful that nursing home abuse and neglect could be fatal for their loved ones.

In some cases, the situation has gotten so bad that the FBI has been sent to raid nursing homes with a high number of COVID-19 cases. According to a recent news report, two Pennsylvania nursing homes were raided and searched just last month by investigators from the FBI, as well as the state attorney general’s office and other agencies. This followed concerning reports of deeply troubling conditions and practices, including a lack of trained nurses, filthy living conditions, and lax sanitation protocols. Data from the State Department of Health shows that 447 residents and staff members tested positive for the disease as of early September, and 73 people had died.

Tragically, this example is just one of many nursing homes across the country, failing to keep their residents safe during a deadly pandemic. But it is important to know that many of the issues leading to the spread of disease were present even before COVID-19 began spreading through the United States. Nursing home abuse and neglect is not new, but COVID-19 is showing just how widespread and deadly it can be. While there have been reports of unsanitary and even filthy living conditions at Maryland nursing homes before, the lack of sanitation is especially apparent when a contagious disease is spreading through the facility. The same is true for medical neglect: a long-standing issue at many facilities, but even more deadly during the pandemic. Even just carelessness on the part of the staff—not wearing a mask at all times, failing to wash their hands regularly—now has an incredibly large impact on the safety and well being of nursing home residents, many of whom require constant care and are unable to move out and care for themselves.

Maryland Nursing Homes Are Still Being Hit Hard by Coronavirus

September 28, 2020 | Lebowitz & Mzhen

Nursing homes continue to be hit hard by the coronavirus. Across the U.S., over 40 percent of deaths in the country are linked to nursing homes. In Maryland nursing homes, the numbers are even higher. As of September 25, there have been 2,146 deaths across the state in nursing homes, group homes, and assisted living facilities, which accounts for 57% of the total deaths in the state. Maryland has seen 753 resident deaths and 7 staff deaths during the week of September 23.

According to a recent news report, one nursing home in Sykesville, Maryland is facing hundreds of dollars in fines after the state found it failed to isolate residents and notify staff during an outbreak. For example, the facility moved an exposed resident to a room with a negative resident, who both later tested positive. Some newly admitted residents also were not isolated, despite having sufficient rooms to do so. Maryland nursing home residents may be able to take action against the facility based on its failure to protect and properly care for residents.

Other states have explored solutions to mitigate the spread of COVID-19 in long-term care facilities. As one news source reported, in New Mexico, the state worked with a healthcare operator to set up a nursing home that it dedicated to treating long-term care patients infected with the coronavirus. It was set up to reduce the spread of COVID-19 in long-term care facilities in the state. Deaths in nursing homes in New Mexico make up 34% of the total deaths in the state.

Maryland Nursing Home Abuse and Neglect May Be More Common at For-Profit Nursing Homes, New Study Finds

September 21, 2020 | Lebowitz & Mzhen

When someone is searching for a Maryland nursing home to place a loved one, it’s likely that a facility’s status as for-profit or non-profit is not high on the list of priorities. Typically, the difficult decision of where to place a loved one who needs part- or full-time care is made based on location, price, and the services offered. Many families may not even think to look into the for- or non-profit status of the facility, instead prioritizing finding a place nearby where their loved one feels safe, or perhaps even knows people already there.

However, a recent study might make Maryland families rethink their priorities when searching for a nursing home. According to the study, senior residents in for-profit nursing homes are almost two times as likely to have health problems linked to poor care, compared to those living in non-profit homes. Additionally, among residents studied at for-profit homes, there were more clinical signs of neglect, such as dehydration in clients with feeding tubes, broken catheters, bedsores, and improperly managed medications.

The leading researcher in charge of the study believes the results show that more oversight is needed in nursing homes, especially for-profit homes. However, the U.S. government is currently considering rolling back existing regulations meant to protect nursing home residents. The existing regulations were put into place to improve resident safety and well-being, to prevent nursing home neglect and abuse, and to improve reporting systems when neglect and abuse do happen. Tragically, the last part is very important—incidents of nursing home abuse and neglect often go unreported, as residents may either be too frail and ill to understand what is happening to them, or may fear retaliation if they report.

Maryland Nursing Home Arbitration Agreements: Advantages and Applicable Law

September 15, 2020 | Lebowitz & Mzhen

Arbitration agreements are often used as a tool against nursing home residents and their families to block litigation in court. There are several disadvantages to arbitration, but there are advantages as well, and some individuals with Maryland nursing home cases may opt for arbitration. Some of the advantages are that claimants may be able to resolve their cases more quickly and more cost-effectively. In addition, because the rules of evidence do not apply, parties may be able to present additional documents and witnesses. Also, arbitration proceedings are generally private, and the parties can decide can keep the proceedings confidential.

In cases that will be resolved through arbitration, there may be a question about the applicable law. Maryland’s Maryland Uniform Arbitration Act (MUAA), governs arbitration in Maryland. The MUAA generally applies if the arbitration agreement contains an explicit choice of law clause that states that Maryland law will govern dispute resolution. But the Federal Arbitration Act (FAA) governs most arbitration disputes as it applies to transactions involving interstate commerce, which has been interpreted broadly. In general, the FAA preempts state law if it contradicts with the FAA, but there are situations in which state law may apply. Both the FAA and the MUAA favor the enforcement of arbitration agreements generally.

In a recent case, a state appeals court ordered a plaintiff’s claim to be resolved through arbitration on the plaintiff’s motion. In that case, the resident signed an arbitration agreement with a nursing home as part of her admission process. The agreement stated that all legal claims against the nursing home had to be resolved in arbitration. After her death, her estate filed a claim against the facility alleging medical malpractice. Per that state’s law, the claim was filed with the state’s Department of Insurance.

When Are Arbitration Agreements Enforceable Against Maryland Nursing Home Residents if Another Person Signed the Agreement?

September 8, 2020 | Lebowitz & Mzhen

Generally, an arbitration agreement, like any other contract, can be enforced against the parties to the agreement. Yet, Maryland nursing home admission agreements (which may include arbitration agreements) are sometimes signed by someone other than the resident. This raises the question of whether the agreement can be enforced against the resident when someone else signed the agreement. If an arbitration agreement was signed, nursing homes will almost always argue that the case must be resolved through arbitration—but the agreement may not always be enforceable. Both parties to the agreement must voluntarily agree and consent to the arbitration. Under Maryland law, someone who purportedly signs an agreement on a nursing home resident’s behalf must have the legal authority to do so.

In a recent state court appellate opinion, the court held that a nursing home resident’s daughter did not have the authority to sign on her mother’s behalf when she was admitted to the facility. In that case, the mother was 77 years old and suffering from dementia and other medical problems when she was admitted to the facility. The daughter and her husband were appointed temporary conservators of the mother before she was admitted to the facility and they signed the paperwork when she was admitted. Among other admission paperwork, the daughter signed an arbitration agreement, and her husband signed underneath the daughter’s name. The mother did not sign the document. Soon after she was admitted she allegedly suffered injuries including fractures and bruises and she passed away a few months later. The plaintiffs filed suit against a senior living facility for negligence, elder abuse and neglect, and wrongful death.

The facility argued that the case was required to be moved to arbitration based on the arbitration agreement the daughter had signed when the mother was admitted. However, the appeals court found that there was not sufficient evidence to show that when the daughter signed the document, she had the authority to bind the mother to the arbitration agreement. The court found that although the daughter and her husband were temporary conservators, and they did not have the authority to make long-term decisions that gave up substantial rights without her consent or without an adjudication that she lacked capacity. In addition, because there was no evidence presented indicating that they intended to sign the agreement on their own behalf, it could not be enforced against them. Therefore, arbitration could not be compelled.

Maryland Nursing Homes Were Unsanitary Before The Pandemic, Now COVID-19 Is Making Matters Worse

August 27, 2020 | Lebowitz & Mzhen

Nursing home negligence and abuse is a huge problem in Maryland and across the entire country. Even before the COVID-19 pandemic hit earlier this year, this blog reported on Maryland nursing homes’ negligence and the devastating effects it can have on residents and their families. However, the COVID-19 pandemic has made matters even worse in many nursing homes. A recent news report documented the harsh realities of COVID-19 within nursing homes and how a widespread lack of safety and sanitation protocols has become potentially deadly.

The report discusses one nursing home that received a citation in October of 2019 for failing to “provide and implement an infection prevention and control program.” The report that accompanied the citation found that staff members would engage in shocking behavior—one, for example, used a soiled towel to wipe a resident’s buttocks and then failed to wash their hands before going back to work. In the aftermath of this report, however, residents’ relatives said that the home did not take steps to change their behavior. One woman discusses the care her 93-year-old mother received, saying that she could not rely on the nursing home staff to take care of her or keep her healthy, and witnessed her being injured or roughhoused. Once, she had to clean fecal matter from her mother’s fingernails or dispose of adult diapers left on her bed. Tragically, the woman’s mother passed away in early April from a COVID-19 outbreak that the nursing home failed to control.

The concerns discussed in this home are not unique. In fact, nursing homes across the nation and in Maryland have very similar problems, with substandard living conditions for residents and a lack of proper sanitation. This caused problems before the COVID-19 pandemic, but has worsened since the pandemic spread across the United States in March of this year, causing outbreaks and deaths among nursing home staff and residents.