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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.

Abuse in neglect in nursing homes and long-term care facilities can sometimes be hard to detect. Families often place their loved ones in a facility after the elder has experienced some form of cognitive decline or illness. The symptoms of aging may mirror those of nursing home abuse, and as elderly residents may suffer from communication, memory, or cognition issues, it can be difficult to determine if a loved one is being properly cared for while living in a nursing home or long-term care facility. Bedsores, also known as pressure ulcers, are one condition that is noticeable to family and may be a sign of serious abuse or neglect.

A recently published article in a legal trade publication discusses bedsores in nursing homes and the abuse or neglect that the condition may be evidence of. Initially, bedsores are a skin condition that develops in patients as a result of being left in the same position for an extended period of time. Nursing home residents who spend all day in a bed or wheelchair without changing positions may develop bedsores. Some symptoms of bedsores include tenderness, swelling, discolored skin, abnormally textured skin, and a pus-like discharge from the affected area.

If left untreated, bedsores can worsen and cause serious health problems. What starts as a condition only affecting the outer layers of skin can move deeper and deeper into the body, as far as the bones, and ultimately may cause infection and become untreatable. Infections caused by bedsores are a cause of death for many nursing home and long-term care facility residents. The risk of death notwithstanding, untreated bedsores are a source of extreme discomfort and can make your loved ones’ lives very difficult.

The arrival of the Covid-19 pandemic has combined with other economic factors to cause an employment shortage in hundreds of industries worldwide. Healthcare is most likely the hardest-hit industry by Covid-19 related staffing shortages. Within the healthcare industry, nursing homes and long-term elder-care facilities suffer from some of the worst staffing shortages on record. Understaffed nursing homes and long-term care facilities result in increased instances of abuse, neglect, and even sometimes-fatal medical malpractice. In an effort to address the chronic nationwide staffing shortages in nursing homes, the U.S. Federal Government has announced plans to enforce national minimum staffing guidelines for nursing homes and other similarly situated facilities.

According to a recently aired national public radio broadcast, the staffing shortages at several nursing homes have become a dangerous problem. The increased risks and workloads presented by the pandemic have made nursing home jobs less desirable. Employers nationwide, including nursing home administrators, are reluctant to increase employee compensation out of a fear that paying more will cut into the companies’ profits. In response to the shortages, the Biden administration has initiated plans to use the Centers for Medicare and Medicaid Services to implement minimum staffing requirements to ensure that the staff is adequate to ensure quality. According to the report, the changes should go into effect within a year.

How Does the Nursing Home Staffing Shortage Impact Residents?

Nursing home residents and their families have the right to adequate care that meets industry standards for such care. The staffing shortages over the last two years have resulted in increasing instances of concern in nursing homes nationwide. Observers have noted increases in bedsores, excessive weight loss, high rates of Covid-19 infection, as well as widespread overprescription of antipsychotic medications to control resident behavior. Residents who have received these types of substandard care, or suffered other acts of neglect, abuse, or malpractice, may be entitled to financial damages for their loss and suffering. A qualified Maryland, D.C., and Virginia area medical malpractice attorney can help victims pursue a case for damages.

Some experts have estimated that over 1 million Americans have died from the virus that causes Covid-19. Hospitals, nursing homes, and medical providers are not responsible for keeping all patients alive and well during a deadly pandemic, as that would not be possible. Although medical providers are not legally responsible for every death that happens on their watch, if an injury or death is caused, worsened, or not prevented because a medical provider acts negligently, then the injured party or their representatives may have a claim for damages. A recently published news report discusses one such case, in which the family of a woman who died of Covid-19 while living at a nursing home has sued the nursing home for wrongful death.

The plaintiffs in the recently decided case are the relatives of a 65-year-old woman who died of Covid-19 in April of 2020 while residing at a New York nursing home that is operated by the defendant. According to the facts discussed in the plaintiffs’ complaint, the defendant failed to uphold the proper standard of care in treating the patient. Specifically, the complaint alleges that there was an unreasonable delay in diagnosing the patient and that once the diagnosis was made, the nursing home negligently failed to give her the proper treatment for the disease. The complaint alleges that the nursing home’s negligence in failing to properly treat the patient was the ultimate cause of her death.

In response to the plaintiff’s lawsuit, the defendant filed a motion to dismiss, claiming that as a medical provider in a Covid-19 related case, they were immune from suit based on a law passed in 2020 by the state legislature. In response, the plaintiff argued that the immunity law was repealed in 2021 and that the repeal applies retroactively to acts of negligence that occurred in 2020. Because the law was in fact repealed, the court ruled in favor of the plaintiffs, and the suit will proceed toward trial.

Choosing the right nursing home to send our loved ones is often a stressful and research-intensive process. After all, we want our most vulnerable family members and loved ones to be cared for properly with the attention, quality of care, and comfort they need and deserve. When nursing home facilities and staff fail to provide these basic necessities of care, however, they must be held accountable for their actions.

According to a news report, first responders arrived at a local nursing home after a resident had called 911 for the second time that day. Among the 98 residents of the facility, many of them had been left to sit in their own waste with limited water, medication, and food for hours. When firefighter crews arrived on the scene, they paired off with EMS crew members and went from room to room to check on residents, monitor their vital signs, and administer medication. For the firefighters, it was the first time they had been asked to respond and care for nearly 100 people at once. The incident remains under investigation.

Shockingly, according to the National Center on Elder Abuse, approximately 95 percent of nursing home residents have been neglected or have witnessed some form of neglect. Unfortunately, Maryland is no stranger to similar incidents of neglect in nursing homes.

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