Articles Posted in nursing home resources

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As a Pennsylvania nursing home lawyer, I was interested to see a report criticizing the states for overusing nursing homes for disabled but younger people. According to McKnight’s Long-Term Care News, a report from the Senate Health, Education, Labor and Pensions Committee found that states are not living up to a 14-year-old obligation to transition working-age and younger people out of nursing homes. The obligation was created by a 1999 court ruling in Olmstead v. L.C., which was based on the states’ obligation to integrate disabled people into society under the Americans With Disabilities Act. Fourteen years later, the Senate HELP Committee investigation found that almost a quarter of a million of working-age disabled adults are in nursing homes. In fact, the committee’s press release said, the number of institutionalized disabled adults is actually growing. It called for actions that would provide community care for more disabled adults.

The Olmstead ruling found that the ability to live within the community is a protected civil right for disabled people under the ADA. Thus, states were asked to transition non-elderly disabled people out of nursing homes if they were able to live independently with some help. But according to the committee report, states are reporting very little progress. Of all 50 states, the report said, only 12 are spending more than half of their Medicare funds on community-based care rather than institutional care. As the committee’s press release notes, this is especially disappointing because institutionalization is more expensive than community-based care. It’s also less popular among the patients themselves, the press release said. The federal report came less than a week before the federal government sued the state of Florida for “warehousing” disabled children in nursing homes unnecessarily.

In my experience as a Philadelphia injury lawyer, this problem is not limited to working-age adults or children. Frequently, disabled elderly people are able to live at home with some help, but the systems aren’t in place to make that possible. This forces them to leave home, often against their will, and accept far more expensive institutional care under Medicaid. That’s especially disturbing because nursing homes are not necessarily safer than living at home. Away from loved ones or neighbors who know them, and in the care of facilities that stretch their staffs too thin, patients can become victims of Pennsylvania nursing home abuse. And the abuse can lead to even more serious health problems, including expensive hospitalization or chronic problems that could truly require an institution. As a Philadelphia medical malpractice lawyer, I think Pennsylvania’s disabled people, seniors or not, deserve better.
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As a firm that’s very active in Pennsylvania nursing home abuse and neglect law, Rosenbaum & Associates pays close attention to the relevant machinations going on in Harrisburg.

As readers of this blog might remember, last fall, the Pennsylvania House passed a bill supported by associations like Pennsylvania Health Care Association/Center for Assisted Living Management. The bill aimed to limit punitive damages that liable nursing homes would have to pay in certain cases. Damages would be limited to double compensatory damages (at best), with an exception for situations in which intentional misconduct occurred.

The bill would also compel plaintiffs to file in the county in which the abuse/negligence happened — as opposed to in counties that have a reputation for being more favorable to plaintiffs.

The Nursing Home Associations’ push may have stalled out for now, but analysts believe that the effort could be kick started again in the fall.

Advocates of the legislation cite the fact that Pennsylvania’s malpractice insurers paid out nearly $320 million in 2011, according to National Practitioner Data Bank research. That would make Pennsylvania the second biggest medical malpractice payout state – ahead of New Jersey and Illinois, but significantly short of New York’s numbers (a $680 million payout!)

The Nursing Home Association has also complained that nursing facilities often operate on small margins; and these fragile businesses could lose everything in a single massive lawsuit. Advocates of the bill also point to massive, almost cartoon-like judgments in places like Florida, where two state facilities last year got hit with judgments of $200 million and $900 million, respectively.

What advocates of this Pennsylvania Nursing Home legislation are not paying attention to…

It’s true that abuse/neglect lawsuits and settlements can place a burden on facilities. But isn’t that burden a good thing? If you or someone you love got hurt in a PA nursing home due to a prescription medication foul-up, bedsore metastasizing into life threatening sepsis, or other horrific scenario, wouldn’t you want to be able to leverage a full suite of legal tools to get compensated and to take care of your loved one?

Is our current system always totally fair? No.

But it’s more unfair to victims of abuse or neglect than it is to owners of negligent facilities – by a long shot.

Perhaps if advocacy groups like the Pennsylvania Health Care Association/Center for Assisted Living Management spent more time identifying best practices for senior care — and punishing facilities for straying from a high standard — there would be less need for law firms and less need for the kind of legal actions that these groups rail against.

The horror stories that we’ve personally heard – and have helped to abate – along with compelling statistics at both the national and state levels suggest that the onus is on delinquent nursing facilities. These facilities need to do a better job of taking care of people: of fulfilling their fiduciary responsibilities not only to their patients but also to our communities.
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As a Pennsylvania nursing home abuse attorney, I was shocked and saddened to read about the tragedy of Rachel Holliday, an 84 year old patient at a Chapel Hill nursing home, who passed away after being horribly abused. She allegedly got sick after being doped with morphine by a nurse who apparently didn’t want to be bothered to care for her patients.

Nurse Angela Almore was sentenced last Monday to five months behind bars and two and a half years of probation as part of a plea deal she made with prosecutors. The allegations against Almore were all too familiar to anyone who has studied the nursing home abuse case literature. Nurse Almore had been on duty at Britthaven Nursing Home in Chapel Hill, North Carolina, on February 13 and February 14, 2010. On Valentine’s Day evening, Holliday started suffering respiratory distress; and she had to be rushed to UNC Hospitals for treatment.

Doctors at first couldn’t figure out what was wrong with her. They eventually realized that there were opiates in her system. This was confusing, since she had not been prescribed opiates.

As her medical crisis deepened, other patients in the Alzheimer’s unit began to exhibit lethargy and signs of health problems. Many of them needed to be rushed to hospital as well. All told, 14 patients in the unit tested positive for opiates – and only one had been prescribed opiates.

Sadly, Rachel Holliday passed away from morphine toxicity. The other affected patients fortunately survived their overdoses. Investigators with the North Carolina State Bureau of Investigation found circumstantial evidence pegging Almore as the responsible party. The local district attorney, Lamar Proctor Jr., told the judge in the case that “[Almore] made some statements that she didn’t want to see patients that night…[so] she knocked all their a**es out.”

After reflecting on the gravity and sadness of the situation, we’d be in remiss if we did not try to extract useful lessons. Here’s one key takeaway: when caregivers shirk their duties – even innocuously — the effects on patients can be profound, damaging, and perhaps even fatal.

At her trial, Almore openly sobbed and expressed contrition. But what she did cannot be undone. Unfortunately, the slight errors of omission – or acts of disrespect – that often constitute Pennsylvania nursing home abuse/neglect can easily create havoc and pain for elderly residents and their families.

That said, building a compelling case against a nursing home or a nursing home employee can be surprisingly difficult. At Rosenbaum & Associates, we have nearly two and a half decades of experience helping hurt elderly patients and their relatives obtain compensation and justice.

If you’re confused or frustrated about what’s happened to your loved one, our Pennsylvania personal injury team can empower you and help you develop a complete, aggressive strategy to get you results.

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As a Pennsylvania nursing home lawyer, I’ve kept a close eye on the issue of overuse of antipsychotics in nursing home patients. These powerful drugs are intended for use in people with serious mental illnesses, but they became popular in the past decade for “off-label” use to control the symptoms of dementia. That popularity plummeted more recently, when medical studies began showing an elevated risk of death or serious health problems like strokes among elderly dementia patients taking the drugs. A recent investigative series of stories from the Boston Globe reports that 185,370 Medicare and Medicaid patients took antipsychotics for inappropriate reasons in 2010, down dramatically from 237,510 in 2005. However, the data from the federal Centers for Medicare and Medicaid Services also showed that those homes that do continue using the drugs inappropriately tend to be understaffed.

The newspaper compiled a database using the federal data, which allows families considering nursing homes to look up each home’s use of antipsychotics. The database excludes homes with fewer than 50 residents, but includes 15,600 homes of 50 or more, from across the United States. Of those homes, 21 percent were giving inappropriate antipsychotic medications to a quarter of their residents or more. Even more tellingly, the newspaper found “a clear link” between low staffing levels and high use of antipsychotics. Homes that most often used the antipsychotics off-label had fewer registered nurses, who direct medical care, and nurses’ aides, who provide much of the hands-on care. The newspaper suggested that this is because lower staffing levels make it hard to find the time necessary to control the negative behaviors of dementia without drugs. By contrast, antipsychotics frequently have a sedative effect, leading some to call them “chemical restraints” in an analogy to the physical restraints homes once used.

This is a form of Pennsylvania nursing home abuse, as any Philadelphia injury lawyer will explain. All nursing home patients deserve to have their basic dignity respected, and that means not drugging them into insensibility or physically restraining them just because it’s convenient for the staff. Nor should this be done for the sake of profit for the nursing home’s parent company, which can save money on staffing by drugging patients and charging the cost of the drugs to Medicare or Medicaid. (Indeed, the Globe found homes that overused antipsychotics tended to have more patients enrolled in Medicaid.) But perhaps the worst thing about the practice of using antipsychotics in elderly dementia patients is that the drugs’ known side effects include a risk of death. In fact, the risk is clear enough that the FDA has ordered its strongest warning on the drugs’ labels, telling patients and doctors about the increased risk of stroke and serious cardiovascular problems for elderly patients with dementia. As a Philadelphia medical malpractice lawyer, I strongly suggest that patients and families trying to make a well-educated decision about nursing home care take advantage of the Globe’s report to determine which homes near them are misusing these powerful drugs.
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As a Pennsylvania nursing home lawyer, I have been watching news about the state of Iowa’s nursing home agency with some interest. Iowa is a battleground for proponents of safety in nursing homes because its governor, Republican Terry Branstad, is perceived by some as overly friendly with the nursing home industry. Branstad has taken campaign donations from nursing home companies, and during his first term as governor, he was cited by three separate state officials for failing to adequately regulate nursing homes. During this term, he has cited budget problems as a reason for cutting 10 Iowa state nursing home inspectors, bringing the office from 38 to 28, even though the positions were 75 percent federally funded. When the state Legislature restored the funds, the inspectors’ department used them for something else. Now, the Des Moines Register reported Sept. 3, the Iowa Department of Inspections and Appeals, a state agency, has declined to turn over statistics it compiles to the Register or the ACLU of Iowa.

The Register asked the Department of Inspections and Appeals in July for answers to six questions about violations, time spent on inspections and uninvestigated complaints. The newspaper also requested two statistical reports the Department compiles for the federal Centers for Medicare and Medicaid Services. That agency adds the Iowa statistics to a federal database that is publicly available, and it also helps to fund the state Department. Saying the data belongs to the federal government, the Department declined to release the data. This got the interest of the ACLU of Iowa, which wrote a letter to the Department this month asking for the legal reasoning behind its refusal to release the information. In the letter, the ACLU’s legal director noted that the federal government does not fund the Department completely and asked for letters, regulations or other rules the Department is relying on. CMS has given the Register the statistical reports in question, but the questions have gone unanswered. Answering them could tell readers how nursing home patients are faring in Branstad’s era of looser regulation.

As a Philadelphia injury lawyer, I suspect the Department might not want to turn over the information because it could make the Department — and the Branstad administration — look bad. By cutting all of those nursing home inspectors, the administration was constraining the Department’s ability to do its job. Thus, it would not be surprising to find that more problems at nursing homes are going unnoticed — and thus, uncorrected. In fact, judging by Branstad’s campaign comments that nursing home inspectors have a “gotcha attitude,” it’s possible that this was actually a goal for him. Regardless of what the voters of Iowa think of this, the dependent elderly and disabled people of Iowa deserve to be safe in their homes, not neglected or abused. That’s why, as a Philadelphia medical malpractice lawyer, I hope the ACLU and the Register succeed in drawing attention to any problems they uncover under the Branstad administration — both public attention and the attention of federal regulators.
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As a Pennsylvania nursing home lawyer, I was interested to see a recent piece on how health care reform affects nursing homes — as employers rather than care providers. As the New York Times reported May 15, many nursing homes are lobbying Congress for an exception to the employer mandate part of the Affordable Care Act because they’re concerned about the cost of insuring their employees. The Act will require all employers with 50 employees or more to offer health insurance starting in 2014, with a financial penalty for failing to do so. The homes say they need an exemption because they depend heavily on Medicare and Medicaid, whose reimbursement rates are going down rather than up. As a result, they say, they can’t simply raise the price of the service they provide.

According to the Times, one in four nursing home employees does not have health insurance. The president of a nursing home industry group told the newspaper that employees who do have insurance typically don’t have very good benefits, which means they may also not meet the Act’s standards. Employees also dropped coverage when they couldn’t afford it. The nursing home industry is exploring several ways around the Act, including laws that would allow homes to deduct the cost of penalties for non-coverage from their taxes; a waiver or reduced fee for homes “placed in financial distress as a result of the new mandates and fines”; and an extension of the time until the law takes effect. A nursing school professor told the newspaper that health insurance would make nursing home employees less likely to pass on infections to their patients and more likely to be treated when they have an occupational injury.

As a Philadelphia injury lawyer, I know those are both frequent problems for nursing home employees. According to the article, nursing home workers are injured twice as often as average, with many back injuries among those who help bed-bound and wheelchair-bound patients into and out of bed. And I’ve written here several times about the probability of sick employees spreading disease through a nursing home’s closed population of vulnerable people. Often, workers come to work sick because they can’t afford not to — because, as the Times notes, the front-line workers make $10 to $12 an hour and frequently don’t have adequate health insurance. Sometimes, a sick day for one staff member understaffs the home for the whole day, resulting in thin-stretched workers who are too busy to meet every patient’s needs. This keeps costs low for employers, but in the long run, it poses risks that could be far more expensive — including the risk of communicable disease, neglect and Pennsylvania nursing home abuse. As a Philadelphia medical malpractice lawyer, I hope nursing homes realize that insuring their workers can save money and lives in the long run, as well as being required by law.
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As a Pennsylvania nursing home lawyer, I know criminal backgrounds are an ongoing problem in Pennsylvania and across the nation. Criminal background checks are required by state law in Pennsylvania and 42 other states, but the databases used can be incomplete and the employees sometimes start before the check is complete So I was extremely interested to see a report about a new federal study saying the vast majority of nursing homes have hired a convicted criminal in the past. As CBS reported March 2, the federal Department of Health and Human Services also found that about half of the homes had hired five or more people with criminal convictions.

The Inspector General of HHS conducted the study by checking names of about 35,000 employees at 260 facilities against the FBI’s list of convicted criminals. The study found that five percent of all nursing home employees examined had at least one criminal conviction. The majority of the crimes, at 44 percent, were property crimes — theft, shoplifting or bouncing checks. Another 12.5 percent were convicted of crimes against a person, such as assault and battery. Perhaps most disturbingly, seven of the 35,000 employees were registered sex offenders. And 16 percent of the convictions had come after the employee was already working in nursing homes. The inspector general recommended that nursing homes use a nationwide criminal background check program. In fact, such a program was passed along with the Obama administration’s controversial health care bill, but each state’s participation is voluntary.

As a Philadelphia injury lawyer, I believe it would best serve patients if participation were mandatory. I’ve written here several times about criminal convictions for nursing home employees, and one theme I’ve noticed is incomplete background checks. Convictions from Pennsylvania might show up in Pennsylvania’s database, but convictions from New York or New Jersey might not. Some of this is simple bad record-keeping, but as CBS noted, only 10 of the states that require background checks require use of the FBI database. That means someone with a problematic history, including a history of nursing home abuse, sexual assault or opportunistic theft can slip under the radar simply by moving to a new state. In my opinion as a Philadelphia medical malpractice lawyer, this puts nursing home patients at an unnecessary risk. Nursing homes could be legally and financially liable for any Pennsylvania nursing home abuse that sloppy background checks fail to prevent, so careful background checks are also in their best interests.
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As a Pennsylvania nursing home lawyer, I was interested to read an article about an ongoing debate in the state legislature on cutting Medicaid costs to balance the budget. The Pocono Record reported Feb. 1 on the proposal and the debate surrounding it in Harrisburg and around our state. New governor Tom Corbett campaigned in part on a promise to cut the budget, and he had enthusiastic support in some areas. But state Sen. Pat Vance, who is a former nurse, told a York County audience recently that there just isn’t much left to cut because most of the Medicaid funding goes to the elderly and disabled. The state Department of Public Welfare said the elderly are the fastest-growing group of Medicaid recipients in Pennsylvania.

Medicaid costs are a problem in every state, with an aging population and medical advances that prolong lives. In Pennsylvania, the elderly are 14 percent of all Medicaid recipients but incur 33 percent of costs. About 50,000 of the estimated 2 million Pennsylvania Medicaid enrollees are in nursing homes; another estimated 35,000 are in alternative care such as small group homes or in-home care. Vance promoted in-home care in her speech, noting that it’s less than half the cost of nursing homes ($25,000 instead of $60,000 per patient per year). Ironically, however, alternative care may be cut from the state budget because that coverage is not federally required, as nursing home care is. Stuart Shapiro, president of the industry group Pennsylvania Health Care Association, said cutting in-home care would likely mean family and friends would care for the recipients instead, with “a tiny percentage” going to nursing homes.

As a Philadelphia injury lawyer, I find that difficult to believe. Families use in-home caregivers because they don’t usually have the skills needed to care for someone with a serious disability, or the money to quit their jobs and become full-time caregivers. Families who lose their safety nets would likely turn to Medicare or even sell an older loved one’s home in order to get that person needed, professional care. That would be a shame, because in-home care offers advantages beyond financial savings. Keeping patients in familiar settings is easier on them personally, and in-home care avoids some of the institutional problems with nursing home care. Caregivers are more likely to be consistent and familiar with the patient’s needs, and less likely to be overwhelmed by work and forget important things or commit Pennsylvania nursing home abuse. And of course, no community of other patients reduces exposure to communicable diseases. As a Philadelphia medical malpractice lawyer, I hope the state takes a long view on elder care when doing the hard work of cutting the budget.
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As a Philadelphia medical malpractice lawyer, I was interested to see a recent report on the ongoing funding problems for nursing homes that accept Medicaid. The American Health Care Association, a nonprofit long-term care trade group, released a study last week showing that nationally, state Medicaid programs underpaid nursing homes by $5.6 billion. That works out to a national payment of $7.17 per hour per patient, which the AHCA points out is below the current minimum wage. The states with the seven biggest funding shortfalls included Pennsylvania, at number six, and neighbors New York, New Jersey and Ohio.

The study (PDF) was commissioned by AHCA and performed by private company Eljay LLC. It puts Pennsylvania’s projected funding deficit for 2010 at $15.13 per hour per patient. The deficits come from the difference between the “allowable costs” for Medicaid services and what Medicaid pays homes. The actual cost of providing nursing home services might exceed Medicaid allowable costs, the report said, which means the shortfall might be even bigger. This is a major issue for nursing homes because Medicaid makes up about 64 percent of their funding, along with Medicare, long-term care insurance and private payment. A separate study published in the Archives of Internal Medicine found that nursing homes eliminated about five percent of their beds between 1998 and 2008 because of budget cuts, with a disproportionately high number of those beds disappearing in communities with high percentages of minorities or poverty.

This issue is interesting to Pennsylvania nursing home lawyers like me because funding has a direct effect on the quality of care patients receive. If, for example, nursing homes choose to let go of staff members, those staff members have less time to spend with each individual patient, and may be tempted to leave more often for higher-paying jobs elsewhere. The results can be disastrous, including patients allowed to wander without supervision, staff members who don’t notice bedsores or other problems, distracted aides who mix up drugs and overworked staff members giving inappropriate dementia drugs just to keep patients cooperative. These and other cutbacks can expose patients to unacceptable Pennsylvania nursing home abuse, which means adequate funding for elder care must be a priority.
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A recent study in the journal Health Economics reported that nursing homes stand to gain profits if they increase their quality-of-care rating on the Nursing Home Compare report card from the Centers for Medicare & Medicaid Services. As a Philadelphia injury lawyer, I’m always glad to hear of ways to encourage nursing homes to improve the care they give to their patients. However, it’s important for families to be aware of their rights to high-quality care, even if the nursing homes don’t stand to increase their profits.

In the Health Economics study, researchers compared financial performance of nursing homes before the Nursing Home Compare report card was instituted in 2002 with their performance after the report card went public. The report card rates facilities on how well they control patients’ pain, prevent bedsores, keep their residents active and other criteria. Their conclusion: Raising their quality ratings tended to result in financial gains for nursing homes. Nursing homes that rated poorer on quality could increase their scores in subsequent years, but it took significant improvements for this to result in higher profits.

Nursing homes that scored poorly tended to be cautious about making expensive investments in quality of care without evidence that it would yield higher profits. The study’s lead author, Dr. Jeongyoung Park of the American Board of Internal Medicine, said that there could be a widening gap between higher- and lower-quality nursing homes because Medicare and private-payer patients tend to choose higher-quality nursing homes, and those patients are the ones who spur nursing homes to make the investments in raising their quality. Thus, the lower-quality nursing homes continue to have poorer patients and fail to make improvements.

Regardless of the quality rating, all nursing homes must provide adequate care for their patients, free of neglect or abuse of any kind. As a Philadelphia medical malpractice lawyer, I have seen many cases in which nursing home patients have been seriously injured and killed because of neglect and negligence. Low staffing levels and poor training of staff in nursing homes more focused on profits than patient care can lead to life-threatening problems. These include severe bedsores; injuries from moving patients without the right precautions; and even patients harming one another when they are left unsupervised. Patients and their families must educate themselves about their rights, choose very carefully and stand up for themselves when they feel that they’re not getting the kind of care they should.
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