Although much of nursing home regulation and action happens at the state level across the country, federal regulations also often impact the day-to-day operations and quality of care that our seniors receive in long-term care facilities. If you have a loved one living in a nursing home facility, it is always important to keep up to date with recent developments both at the state and federal level so that you can best protect your family members and advocate on their behalf if necessary.

According to a recent news report, the 8th Circuit Court of Appeals approved of a federal regulation that allows nursing homes to use arbitration agreements with residents but prevents them from making the agreements a prerequisite for admission to the facility. In its opinion, the three-judge panel rejected arguments from a group of nursing homes that claimed that the regulation was unlawful.

In its opinion, the court concluded that it was reasonable for the Centers for Medicare & Medicaid Services (CMS)—the federal agency that promulgated the regulation—to regulate the use of arbitration agreements in nursing homes. The regulation, the court reasoned, would further the well-being and overall health and safety of residents, especially when the elderly individual is first admitted into the facility.

When we send our loved ones to a nursing home, we expect them to be given the attention and quality care they deserve. Since the COVID-19 pandemic, however, many nursing homes have had to shut their doors to visitors as elderly residents have presented as high-risk for catching the virus, leaving abuse and neglect often concealed behind closed doors. As a result of outbreaks and quarantines, many facilities also became short-staffed—and many elderly residents suffered as a result.

According to a recent news report, a nursing home was fined $27,739 after elderly residents were neglected following staffing shortages. Based on a report released by the federal Centers for Medicare and Medicaid Services, the nursing home left residents with bedsores in their waste for up to eight hours at a time. In addition, the nursing home failed to protect residents from emotional and physical harm, abuse, and mental anguish. With more than 100 cases of COVID-19—including 37 staffers—reported at the nursing home during an outbreak earlier this year, the facility became even more short-staffed than ever before, with no registered nurses or supervising staff available to keep an eye on residents. At one point, there was only one certified nursing assistant per 53 residents, which prevented vital sign monitoring every few hours for significantly ill residents.

Unfortunately, Maryland is no stranger to similar elder abuse and neglect and staffing challenges in its nursing homes. In addition, many elderly Maryland nursing home residents have been subject to different kinds of physical, emotional, and sexual abuse.

With each passing year, more states are enacting laws that allow for the installation of cameras in nursing homes and other similar long-term care facilities. After all, sending our loved ones to nursing homes is never an easy endeavor. When we put our loved one’s care in the hands of strangers, it can often be challenging to feel at ease when abuse or neglect could be taking place behind closed doors. To proponents of allowing cameras in nursing home facilities, allowing cameras ensures increased accountability and safety from abuse and neglect for our loved ones.

According to a recent news report, other states are continuing to consider enacting laws that would allow cameras to be placed in their loved ones’ rooms in nursing homes. Proponents argue that such laws could go a long way in building a record and substantiating claims of abuse or neglect, instead of relying on staff who may fear repercussions as a result of reporting. Cameras could also be beneficial for nursing home staff to refute false claims. Although cameras will likely not solve all existing problems for elderly residents, proponents argue it could be a step in the right direction to increase transparency, accountability, and safety in these long-term care facilities.

In light of COVID-19, many nursing homes have had to close their doors to visitors because of public health and social distancing protocols. Because elderly residents of nursing homes remain a highly at-risk group in the midst of the global pandemic, many suspect that the ongoing pandemic increased the frequency of abuse or neglect taking place behind closed doors as in-person visits became restricted or limited.

Families of nursing home residents know all too well that they have to put a good amount of trust in nursing homes. Families cannot be with their loved ones all the time and some residents are unable to report abuse, or even understand that they are being abused in the first place. Abuse can take different forms, including physical, emotional, and financial abuse. There may be signs of abuse, such as broken bones and unexplained injuries, fear or distress, poor living conditions, and missing finances. Victims of Maryland nursing home abuse may be able to file a claim against the perpetrator, the facility, and anyone else responsible for the harm.

Maryland nursing home residents have the right to live in a safe and sanitary environment free from abuse. Nursing homes are required to report any allegations of abuse to Maryland’s Office of Health Care Quality within five working days of the alleged violation. They must also conduct an investigation and provide a report to the state. Nursing homes also have to have proper policies and procedures in place in order to prevent abuse and keep their residents safe. Nursing homes that fail to report abuse are subject to fines and other sanctions.

While perpetrators may face criminal charges, victims may also seek compensation for their injuries through a civil claim. Damages may include medical treatment for injuries (past and future), pain and suffering, disfigurement, loss of companionship, and more. A plaintiff must prove all of the damages claimed in a civil lawsuit. The plaintiff has the burden to prove damages, and the claim, by a preponderance of the evidence standard. In any case, anyone who is concerned that their loved one may have been abused should with a Maryland nursing home attorney as soon as possible.

When we send our loved ones to a nursing home, it can often be a nerve-wracking process. Ensuring that our family members are taken care of, receiving quality care, and comfortable can shape up to be quite the challenging endeavor when it comes to finding the right facility and staff. Sometimes, however, our elders end up in nursing homes that may not be as great—and may not uphold the expected standard of care. When this happens, our seniors experience low-quality care and sometimes even abuse or neglect.

Unfortunately, Maryland is no stranger to elder abuse and neglect. In 2019, the Maryland Department of Aging reported that of 4,948 complaints that were investigated by the agency, 350 were alleged resident abuse cases. Separately, the Maryland Department of Health, Office of Health Care Quality received 1,427 reports of alleged abuse and 693 allegations of neglect in 2019.

These issues, however, are not unique to only Maryland elders. To combat these challenges and to improve regulatory oversight over nursing home facilities, several U.S. senators recently introduced a new bill targeted at improving the quality of care for seniors all over the country.

For older individuals living with dementia, taking antipsychotic drugs nearly doubles their chance of death from heart problems, infections, and other serious ailments. But for years, nursing homes have used these drugs to control their patients who have dementia. Because of the increased risks to patients treated with antipsychotic medications, the government requires nursing homes to report the number of residents who are taking antipsychotics. However, the government does not keep a public record of residents who are prescribed antipsychotics if they are living with schizophrenia, Tourette’s syndrome, or Hungtington’s disease. As a result, the New York Times reports that some doctors at nursing homes are diagnosing residents with one of these three diseases and then prescribing these patients with antipsychotics in order to avoid the requirement that they include these patients in their reported number of antipsychotic drug use. Nursing homes engaged in this practice have the goal of making their facility look more appealing to the public. Because of this practice, it has become harder to get an accurate portrayal of the rate of antipsychotic drug use on residents in nursing homes

If a nursing home has a high rate of antipsychotic drug use, the government may give the facility a lower “quality of resident care” rating, which in turn would have negative financial consequences for the nursing home. The rating system was designed by Medicare to help patients and families evaluate various facilities. Because antipsychotics have been approved for treating patients with schizophrenia, Tourette’s syndrome, or Huntington’s disease, antipsychotic prescriptions in these instances are not included in a facility’s public tracking. As a result, some nursing home facilities have used this as a loophole to hide the true number of residents who are on antipsychotic medications. According to Medicare data, since 2012 the number of residents diagnosed with schizophrenia has increased 70 percent.

Medicare’s website reports that less than 15 percent of nursing home residents are on antipsychotics, but because of the loophole, this number does not accurately include patients who have been diagnosed with schizophrenia. It is suspected that some understaffed nursing homes are using antipsychotic drugs to more easily subdue patients so that these facilities do not have to hire additional staff.

Each year, it is estimated that nearly five million elderly adults may experience some level of abuse, exploitation, or neglect. In addition, official reports are only made for one in every five cases of elder abuse.

With this in mind, sending our loved ones to a nursing home can often be an extremely stressful and challenging process. After all, you are entrusting the care and well-being of your family members and loved ones to a nursing home facility and its staff. Sometimes, even with due diligence and research into facilities, instances of nursing home and elderly abuse can take place. When these incidents happen, it is crucial that those who are responsible are held accountable for taking advantage of our loved ones.

According to a recent news release, a certified nursing assistant was charged with sexually assaulting two elderly residents at a nursing home during his overnight shifts. As a caretaker, the certified nursing assistant was responsible for changing, bathing, feeding, toileting, and helping as needed with incontinent residents at nursing facilities. An investigation by local authorities revealed that the certified nursing assistant allegedly sexually assaulted two elderly female residents by acting under the guise of providing assistance with washing or toileting, only to instead use it as an opportunity to sexually assault them. The nursing assistant was indicted on multiple criminal charges, such as indecent assault and battery upon an elder.

For years, policymakers have known about the pervasive presence and impact of nursing home abuse in America. Recently, a bipartisan federal investigation revealed that lacking care for seniors has been disproportionately clustered within less than five percent of the nation’s nursing home facilities.

According to a recent article, poor nursing home care has been clustered among facilities listed under the Special Focus Facility (SFF) program. Facilities listed under the SFF program include the country’s worst-performing institutions, which “substantially fail” to meet basic care standards required by the federal government. Some commentators have noted that SFF nursing homes are considered “repeat offenders” who have a “pattern of neglecting and harming vulnerable residents.” Until recently, landing on the SFF list was shameful—but without proper enforcement or rehabilitation mechanisms in place, many facilities have not been held accountable.

To combat the issue, however, policymakers are stepping up to the plate. Legislative action from Congress could improve and expand quality care in nursing homes not just in Maryland but across the country. A new bill known as the Nursing Home Reform Modernization Act of 2021 proposes to expand the list of monitored facilities, increase resources for facilities that are underperforming, and establish an independent Advisory Council to inform federal agencies how to provide the best care possible and evaluate nursing home facilities.

Although vaccine mandates may provide relief for some nursing home residents, some nursing homes worry that they may lead to understaffing in Maryland nursing homes and throughout the U.S. A federal vaccine mandate is going in effect, meaning that in many nursing homes, workers will be required to get vaccinated against COVID-19. Currently, 27% of nursing home staff have not been vaccinated, causing some to worry that those staff members will look for another job instead of getting vaccinated. Administrators said that some other healthcare providers who also receive federal funding, such as some hospitals, home health agencies, and community health clinics, do not yet require the vaccine and may provide alternative employment options for those workers.

Maryland’s governor recently announced that all employees at Maryland nursing homes and hospitals must be vaccinated or undergo ongoing screening and testing. Maryland nursing home staff must receive their first dose of a COVID-19 vaccine by September 1st. If a nursing home fails to comply or to report vaccination compliance, it will be subject to fines, penalties, and enforcement action. About 79% of staff members at Maryland nursing homes have been vaccinated so far.

A Maryland nursing home resident who contracts a communicable disease because of the nursing home’s failure to adequately protect its residents may be able to file a claim against the facility. State and federal regulations require nursing homes to adequately care for and protect residents. Nursing homes must continue to take precautions to help protect residents from contracting COVID-19. Even nursing homes residents who are vaccinated continue to need protection, as many are immunocompromised and may not be fully protected even with vaccines. This means that a nursing home may be liable for failing to take adequate protections to protect a resident from COVID-19. Facilities are still expected to take measures to protect residents, such as routine cleaning, investigating potential cases, isolating COVID-19 positive or suspected positive residents, and screening staff. The facility is also required to record infections and report them to health officials.

Often when an individual is injured or mistreated in a nursing home, they have already signed away their rights to bring a lawsuit. Instead, depending on the language of the contract they signed when entering the nursing home, they are required to arbitrate all claims brought against the nursing home. Arbitration is a form of alternative dispute resolution, where an arbitrator—instead of a judge—decides the outcome of the dispute and how much money the nursing home must pay.

A recent federal bill would forbid nursing homes from forcing residents to agree in advance to arbitration in cases where lawsuits are brought against the nursing home for inadequate and a lack of care. The bill would also require a 24-hour nurse to be available at nursing homes, along with requiring an infection prevention and control specialist. Nursing homes receive most of their financing through Medicaid and Medicare, meaning they must follow state and federal regulations—including this bill if it were to be passed by Congress. While it is unclear now whether this bill will be passed, it would provide nursing home residents with a mechanism to bring a lawsuit if they are injured or mistreated while living at a nursing home.

While arbitrating nursing home disputes may not seem terrible for either party, it often limits the settlements plaintiffs will receive, as compared to a jury. An arbitration clause, literally forces the resident to arbitrate instead of suing the home—regardless of the allegations. While arbitrators are often impartial and will ensure the plaintiff’s claims are adequately heard, bills like the one being discussed now give residents the opportunity to bring a lawsuit if they have been neglected or abused. This is better than forcing everyone to bring all claims in front of an arbitrator.

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