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Selecting a good nursing home or care facility for loved ones can be a stressful and complicated process. It is important to know that our most vulnerable family members are being placed in a caring, comfortable, and safe environment. Unfortunately, recent events have left many nursing and care homes with a lack of staffing, training deficiencies, and supply shortages. When nursing homes fail to meet the basic requirements of care for residents, they must be held accountable.

According to a recent news report, the attorney general’s office of Vermont has reached a settlement with the operator of four residential care homes in the Rutland area over allegations it failed to properly train staff and adequately document and monitor the delivery of services. The investigation began in December of 2020 and found that the care home operator, Our House, failed to properly supervise the administration of medication, protect residents from abuse, properly supervise and train staff, and ensure that allegations of abuse were timely and properly reported.

In the settlement agreement, Our House did not dispute the facts but instead denied liability. Our House stated that additional information would show a lack of intent and that it didn’t believe it violated any state or federal law. Under the settlement agreement, Our House is required to implement new trainings and compliance practices to prevent further similar issues at their facilities. If they fail to meet the standards of the settlement agreement over the next three years, Our House will be required to pay $40,000 in damages and penalties.

When older adults live in congregate settings, they may be at a high risk of being affected by viruses including COVID. The CDC recommends a strong infection prevention and control program to protect both residents and healthcare workers. The CDC states that training should be conducted to prevent the spread of COVID. Healthcare workers should learn which places in the healthcare environment are reservoirs for germs, how germs can spread from those places, and what processes can be put in place to control infection.

According to a recent news article, after a nursing home became infected with the COVID-19 virus, a facility failed to provide any of the doctor-prescribed treatments for the virus. As a result, an Iowa nursing home resident died of COVID-19 in March. Four weeks after being admitted to the nursing home, a resident tested positive for COVID-19, but the resident’s physician was not notified. Three days later, the resident’s oxygen saturation levels dipped to 86 percent, and the resident’s doctor then became aware of the COVID-19 diagnosis and ordered an antibiotic, a steroid medication, and other drugs, in addition to ordering that the resident be given oxygen, a chest x-ray, a laboratory test to detect anemia or infection, a blood test, and a test to check for blood clots. Within 19 hours, none of the treatments or tests had been conducted, and the resident died due to COVID-related pneumonia. An investigation revealed that the physician’s orders were only entered into the computer after the resident had passed away.

What Were the Nursing Home's Responsibilities to Prevent the Spread of COVID-19?

A review of the nursing home’s logs showed that the facility failed to routinely test their employees for COVID-19, as the site required weekly testing. The administration of the home admitted to only taking the staff’s word that they were being tested as required, failing to follow up to verify the claims. The patient who died from COVID was diabetic, but the home had failed to comply with physician orders regarding blood-sugar levels on 53 occasions in March, in addition to the resident not receiving various physician-ordered medications on 24 occasions in February. The physician was not notified of any of those failures. Furthermore, there was at least one incident involving alleged abuse of a patient at the nursing home, formal grievances about the staff’s response to call lights, and reports of flies in the facility. This was in addition to the nursing home being cited for failing to serve palatable food to residents. In total, the home was cited for violating 21 federal standards of care and two state standards of care. The state fined the nursing home $19,250, which will be reduced by 35 percent if the owner chooses not to appeal the penalty.

Maryland nursing homes typically include an arbitration agreement requirement amongst hundreds of papers that residents and their families review and sign upon admission. These agreements purport to reduce the likelihood that the parties need to be embroiled in lengthy legal disputes. However, the crux of these documents stands to protect the nursing home in cases of allegations of abuse or neglect. In many cases, Maryland nursing home abuse victims and their families will try and invalidate an arbitration clause in order to proceed with a civil legal claim. However, these cases present two-fold challenges; first, the plaintiff must establish that the arbitration clause is invalid, and then they must still prove negligence in the courts. A skilled nursing home abuse attorney can help families successfully work their way through these daunting claims.

Families of nursing home residents continue to fight against the deceptive admissions process that many nursing and assisted living facilities to engage in. For instance, a recent article described a situation where a woman’s mother passed away following a long battle with Parkinson’s disease. The woman discovered that her mother had suffered a broken shoulder without any x-rays or treatment. Further, medical documentation revealed that her mother fell at least nine times and suffered multiple urinary tract infections. These injuries led to her mother losing nearly 20 pounds. In response, the woman attempted to file a nursing home negligence lawsuit against the facility, but she was met with a pre-dispute binding arbitration agreement document. She is now encouraging families to assert their rights to decline to sign these agreements.

Are Nursing Home Arbitration Agreements Enforceable?

Lawsuits asking the court to compel arbitration are generally viewed as “favored actions.” As such, courts will lean towards enforcing arbitration agreements. Generally, the court will look to whether there is a valid agreement to compel arbitration. If so, the parties are bound by the terms of the agreement. However, despite these challenges, an attorney can help families overcome these inherently unfair and often deceptive agreements.

Trusting the care of our loved ones to a nursing home is always easier when you have faith in the facilities and staff members. As family members and loved ones in Maryland age, they can sometimes require more care than is available at home, making nursing homes a necessary step to allow them to age gracefully. Unfortunately, due to recent events and hiring levels, many nursing homes are understaffed and or under-resourced. Any location that your loved ones go to must be fully prepared to take care of their physical, emotional, and mental health.

According to a recent news article, nearly a third of all nursing homes are rated as below average. Reasons for below-average ratings can range from overcrowding to substandard care or worse. It is important to research and look out for certain common issues that can be found in nursing homes throughout Maryland. Here are three issues to consider before selecting a nursing home for your family member or loved one:

Staff availability. Not only is it vital to verify that the nursing home you select is staffed at an appropriate level, but nursing homes offer a variety of staff availability levels throughout the day, ranging from around-the-clock care to less hands-on shift times. Additionally, good long-term care locations will offer registered nurses on duty and licensed practical nurses available on request.

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.

As Americans age, the instances of mental and psychological illnesses and adverse events tend to increase. Mental health care can be a delicate challenge in any case, but may be even more problematic in nursing homes. Residents with certain psychological or behavioral issues may be diagnosed and treated for a more severe mental illness without medical justification. Although the reasons for these misdiagnoses may vary, the U.S. The Federal Government, through the Centers for Medicare and Medicaid Services, recently released guidelines to prevent this misdiagnosis and treatment in facilities that accept federal money.

What Leads to Misdiagnoses in Maryland Nursing Homes?

The reasons that nursing home residents may be misdiagnosed with a severe mental illness vary, but the most concerning reasons are based on behavior control. Anecdotal evidence from nursing home employees has suggested that a difficult resident could be more easily controlled by diagnosing them with schizophrenia and administering them strong antipsychotic medications. This method of behavior management is unethical and illegal, but many nursing home residents and their families are not aware of the misdiagnoses that are occurring. In the past two decades, the diagnosis and treatment of schizophrenia among nursing home residents has drastically increased. This appears to be the result of a pattern of misdiagnosis and overmedication of patients.

Many Maryland nursing homes and long-term care facilities request that an incoming resident agrees to an arbitration clause as part of the admissions contract. An arbitration agreement prohibits residents from bringing certain negligence or other civil claims to court and instead forces them to be heard by a third-party arbitrator. The arbitrator does not need to be a judge, and arbitration appears to favor the nursing home companies over aggrieved residents and their families.

Because Nursing home admissions agreements are legal contracts, if an individual who is being admitted to a nursing home is incapacitated or mentally unable to assent to the contract, a family member may be able to sign on their behalf. In 2019, the Federal government passed regulations that regulated nursing homes’ use of arbitration agreements. These regulations only apply to nursing homes that accept Medicare payments, which includes the majority of Maryland nursing homes. Under the 2019 regulations, a family member may assent to an arbitration agreement as part of the admission process to a nursing home.

What a nursing home may not want you to know, however, is that the 2019 Federal regulations also prohibit nursing homes from requiring that residents agree to an arbitration clause as a condition of admission. Although this is the law, many nursing homes continue to require residents and their families to accept arbitration agreements as part of an admissions contract. Some families may not even know there is an arbitration clause hiding in the many documents that must be reviewed and signed when admitting a loved one.

Nursing home abuse and neglect have become endemic nationwide, and the mid-Atlantic region has been affected especially hard. Overworked employees, ineffective laws and regulations, and a profit-driven motive all contribute to instances of nursing home abuse and neglect. To ensure that their loved ones are being cared for appropriately and remain safe, some families have chosen to put surveillance cameras in their loved ones’ rooms so they can check up on them remotely. Placing a camera in a room may also preserve any possible evidence in the event of alleged abuse and neglect.

Maryland’s legislature enacted laws permitting and regulating the installation of cameras in nursing homes several years ago. A contemporaneously published national news report discussed the legislature’s reasoning for passing the law. According to the facts discussed in the news report, Maryland’s legislature was the first in the nation to pass a law that would allow nursing home residents and their families to install cameras in the resident’s rooms. Some nursing homes opposed the law, as it would result in more accountability and possible liability for any issues, but the legislature and elder health advocates stood their ground and the law was passed.

Are Cameras Allowed in Maryland Nursing Homes?

Under current Maryland law, nursing home residents and their families are allowed to place cameras in the residents’ rooms, but some conditions must be met. Both the resident and the nursing home must know of and approve of the camera. If a camera is not approved by a nursing home, whatever footage of abuse or neglect that is captured may not be admissible in a court of law. The laws in Virginia are substantially similar. Under these legal frameworks, it is essential for people seeking a nursing home for their loved one to confirm that they are allowed to place a camera in their room if they so desire.

When we send our loved ones to a nursing home or they choose to head to one on their own, we trust that the staff at these facilities will take care of them as we would. This, however, is not always the case. Unfortunately, some nursing home facilities can often be abusive toward its residents—and create situations dangerous for the physical, mental, emotional, and financial health our loved ones.

According to a recent news report, more than a dozen residents had to be relocated amid allegations of abuse at an assisted living facility. Based on an investigation, reports from as far back as 2018 showed previous rule violations such as strong urine odors at the facility, a failure of the facility’s staff to store perishable foods properly, and a failure to properly supervise a resident with dementia. Following recent allegations of elder abuse at the facility, state regulators shut the nursing home down. According to local authorities, criminal charges are possible, but nothing has been filed yet. Details into the allegations and the health of the residents who had to be transferred to other facilities remains under investigation.

What Are the Signs of Elder Abuse?

Because abuse takes many different forms, the signs of abuse can also vary. Some things to look out for include your loved one suddenly becoming isolated from friends and family, unexplained burns, scars, or bruises, new signs of depression and confusion, preventable conditions such as bed sores, or recent changes in spending patterns.

If you have ever read a contract closely, there is frequently a clause included that compels the parties signing the contract to arbitrate, rather than litigate, if a dispute arises. These clauses are most commonly known as arbitration clauses and are often included in all kinds of contracts because arbitration is often less costly and more expedient than a traditional lawsuit when it comes to dispute resolution. The inclusion of an arbitration clause in a contract, however, does not automatically mean it is valid and enforceable. In fact, sometimes, if the terms of the arbitration clause are particularly unfair, the court could determine that the arbitration agreement is unenforceable and invalid.

According to a recent state court opinion, some arbitration clauses contained in nursing home residency agreements may be unenforceable because of unfair terms. The court noted, however, that if the unfair terms are severable, or removable, from the agreement, the arbitration clause could still be enforced. To succeed on a claim that an agreement is unconscionable, or unfair, there must be a showing that the contract was made under deceptive or confusing circumstances for one party so that bargaining power was limited, and if the terms of the contract itself are significantly unfair to one party.

In the case at hand, several terms in the arbitration agreement were deemed “undoubtedly unconscionable” by the court. The unjust terms included a waiver of attorneys’ fees and costs, an inability to appeal, a limitation on discovery, a one-sided arbitration obligation, and a confidentiality provision.

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