All new residents entering a nursing home must sign an admittance contract, many of which are hundreds of pages long. Within these contracts, written in fine print, is a clause confirming forced arbitration. Most residents and their families have no idea this forced arbitration clause is part of the contract, and many do not even know what forced arbitration means. We urge anyone currently in a nursing home or considering entering a nursing home to understand this clause and how important it is to your health and safety.
In the current system, Medicare pays nursing homes a daily rate for a resident’s stay based on how much therapy they receive. Residents who receive “ultrahigh” therapy, at least 720 minutes per week, generate the biggest payouts for nursing homes. Medicare initiated this payment system in 1998, and nursing homes have caught on to how to bilk the system, billing for increasing therapy levels even for residents in extremely poor health.
Our team of nursing home lawyers examines how this trend in ultrahigh therapy is contributing to the negligence, abuse, and mistreatment of residents.
We have written extensively on the dangers of new blood thinning drugs like Xarelto and Pradaxa. Lesser known are the dangers of an older and much more popular type of blood thinner in nursing homes. Our team of nursing home negligence lawyers highlights the importance of medication safety among nursing home residents.
Coumadin (or the generic, warfarin) has been the most-used blood thinning drug since the 1950s. It has saved countless lives, but it must be carefully and consistently monitored with blood tests and diet changes. If it is not properly controlled, the drug can cause fatal bleeding or blood clots.
Blood thinners help the body control how fast blood clots, preventing pre-existing clots from getting larger or breaking off and traveling to the lungs, brain or heart. Some patients take warfarin for abnormal heart rhythms, or to prevent strokes, pulmonary embolism and deep vein thrombosis. The drug requires delicate medical supervision, however, and far too many understaffed and under-resourced nursing homes are unable to properly monitor residents on this medication.
Our nursing home lawyers are excited to announce that the Centers for Medicare and Medicaid Services (CMS) recently proposed a new set of rules for nursing home oversight. This is the first comprehensive update of nursing home regulations since 1991.
The proposed rules were released on Monday, July 13, 2015 and announced by President Obama at the White House Conference on Aging. Totaling more than 400 pages, CMS’ new rules aim to tackle the issues plaguing the nursing home industry head-on. Among its aims, CMS hopes to reduce unnecessary hospital admissions and infections, introduce new safety measures, increase quality of care, and redefine terms such as “abuse,” “exploitation,” “misappropriation of resident property,” and “sexual abuse.”
Our nursing home negligence lawyers work with individuals and families who have already committed to long-term care. It’s no secret that negligence and abuse in nursing homes is more likely to occur in poorly-run facilities without adequate resources. Long-term care insurance can help families pay for the highest-quality nursing home, reducing the likelihood that abuse or neglect will occur.
This type of coverage pays for all or part of nursing home, home health care, and assisted-living facility costs. More than two-thirds of Americans aged 65 and over require some type of long-term care, the best possible models of which are extremely expensive. Due to rising costs, residents and families either turn to Medicare and Medicaid or to inexpensive nursing homes. This can have disastrous results, from abusive staff to sub-standard living conditions.
About eight million people in the U.S. have long-term care coverage, which is offered by a dozen insurance companies. Many companies are beginning to offer alternative long-term care options as part of retirement or life insurance plans as well.
Broaching the subject with an elderly loved one may be difficult, but an open discussion is always the best avenue. Some families may benefit from asking outsiders to help start the conversation, such as physicians, friends and neighbors, clergy members, and geriatric screening programs. On average, people who purchase long-term care coverage are 65 years of age.
As baby boomers get older, more and more Americans are expected to enter nursing homes. Anyone considering long-term care insurance should do so carefully: shop among several policies, consult trusted advisors, and check Consumer Reports. More detailed information on this type of coverage and the various types can be found here.
Choosing a Nursing Home
For those who are beyond this point, choosing a nursing home for yourself or a loved one is often an overwhelming and stressful time. There are many different types of nursing homes, ranging from intensive 24-hour-care to general monitoring with little active nursing. There are for-profits and non-profits, small and large, run by individual owners or large corporations.
Our team of nursing home negligence attorneys receives similar complaints by families with elderly loved ones, concerned over the true quality of care they are receiving. Families rarely see actual instances of abuse or neglect, rather noticing their loved one’s physical, mental and emotional health steadily decline.
Residents who are neglected or abused in nursing homes often become malnourished, reclusive, overmedicated – more simply, not themselves. Nursing homes have been operated the same way for decades, to meet government regulations and qualify for Medicare and Medicaid reimbursements.
Increasingly, nursing home chains are being bought out by large corporations so that now more than one-third of all American nursing homes are run by large, for-profit companies.
The nursing home industry is in desperate need of reform. There are a few pioneers looking toward the future, however. Our population is rapidly aging – by 2050, about one-third of American citizens will be 65 years or older and about 4% will be 85 or older.
Big, for-profit nursing home chains offer long-term care at relatively inexpensive rates. They are able to lower rates by implementing various cost-saving features, such as industrial cafeteria, shared bedrooms, and overworking staff.
Among those with an optimistic plan for future care for the elderly and disabled include the Green House Project, which we wrote extensively about here and here. The hard truth is that nursing homes hinder resident freedom and happiness; studies show that depression among residents is significant. Perhaps it is the approach altogether that is wrong: tightly controlled lonely institution devoid of personal or loving atmosphere. Profits and economic efficiency are of the utmost importance, rather than the residents or staff quality.
Concepts like the Green House Project aim to remedy this inherent problem. In 2000, Dr. Bill Thomas decided to build a nursing home from scratch that was affordable, could accept Medicare and Medicaid patients, and, most importantly, appeared more like a home than an institution. The first was built in Tupelo, Mississippi.
Each Green House has 10-12 private bedrooms with attached bathrooms (which helps control infection), surrounding communal living and kitchen areas. There are certified nurse assistants and the primary caregivers, which take care of food preparation, housekeeping, and activities for residents, among other duties. The team also works closely with other Green House staff, so they may manage their own schedules and decision-making processes.
In the 15 years since the first Green House opened (there are now nearly 175 in 27 states), several studies have shown exceptional results. These studies show that Green House staff is happier with their jobs and more likely to stay in their positions, residents enjoy a higher quality of life, and families are happier with the settings than traditional nursing homes.
The Green House Project places emphasis on radical culture change within long-term care facilities. Residents get a say in the menu plans, for example, and the care is centered on each unique person’s needs. The staff feel empowered because they can organize their own schedules and are coached in their positions, instead of ordered to meet certain goals by executives.
Perhaps the best part is that Green Houses are affordable – more than half of residents are on Medicaid. Residents are not only happier, but healthier as well. One study found the rate of hospitalization per year was about seven percentage points lower for Green House patients compared to those in a traditional nursing home. Employees like their jobs, are not rushed through their duties, and thus are far less likely to abuse or neglect residents.
One of the country’s largest nursing home chains was recently hit with a $38 million negligence and fraud settlement. This type of healthcare fraud is common in poorly-operated nursing homes throughout the country. Any evidence or suspicion of fraud is a red flag of systemic negligence in a nursing home.
Extendicare was charged with billing Medicare and Medicaid for unnecessary and inappropriate services, such as physical therapy, in 33 nursing homes. Extendicare owns and operates 150 nursing homes in 11 states. This is the largest settlement in the Justice Department’s history involving nursing home fraud.
Prosecutors for the federal government said that Extendicare failed to hire enough nurses to properly care for residents in its facilities. Understaffing of this nature is rampant in nursing home owned by large chains and can lead to severe problems, such as more frequent falls and bedsore development
They went on to say that the care provided at these 33 facilities was so poor that many residents became dehydrated, malnourished, and suffered infections. This led to unnecessary hospitalizations, head injuries, and a considerable decrease in quality of life.
The claims against Extendicare’s nursing homes were first filed by a whistleblower in Ohio who accused the company of poor care. Another whistleblower in Pennsylvania also accused the company of inflating their Medicare reimbursements, providing unnecessary care to residents to increase how much they could bill the government. More information on the Pennsylvania whistleblower can be found here.
Medicare reimburses healthcare centers based on the amount of rehabilitation services a resident needs. Nursing homes, particularly for-profit chains, often exaggerate how much rehab a resident needs to milk money from Medicare and Medicaid. The nursing home chain Ensign, for example, recently agreed to a $48 million settlement for similar fraud charges.
The Obama Administration has made nursing home investigation and prosecution a top priority in the justice system. Overall, investigators go after nursing homes that defraud Medicare and Medicaid, and then pursue problems with resident care such as understaffing and overmedication. Poor care and government fraud go hand in hand: if a nursing home is unethical enough to subject residents to unnecessary treatments, it is surely taking other measures to cut costs at the expense of resident safety.
Thus, prosecuting nursing homes for health care fraud not only protects taxpayer funds, but protects the health and safety of residents as well. This was demonstrated in Extendicare’s suit by internal emails shown in court. One Extendicare executive expressed concern that a resident with a seizure condition was physically unable to participate in physical therapy. He described this as a “missed opportunity … a financial loss of 2300 bucks.”
The settlement included terms requiring Extendicare to enter a five-year integrity agreement. This will have an independent monitor assess Extendicare facility’s staffing levels among other quality measure to make sure it is making improvements. Fortunately, this agreement applies to all 150 Extendicare nursing homes in the U.S.
The rise in for-profit nursing home chains is pervasive – over 70% of nursing homes are now for-profit – at the cost of elderly, sick and vulnerable residents. These chains operate to please investors, not residents, and skimp on the most critical aspects of care like trained nurses and medical supplies.
Our nursing home negligence lawyers often write on the overuse of dangerous medications in nursing homes – a practice known as chemical restraint – on this blog. It is an extremely important, insidious issue that has been hidden by nursing homes for far too long. Recently, federal investigators urged Medicare to take immediate action to stop chemical restraint after investigations found widespread drug abuse.
The findings of this federal investigation are scheduled for release on Monday, March 9, 2015, so check back for more details at that time. Throughout his tenure, President Obama has been working with nursing homes to curtail the use of dangerous drugs; specifically, the use of antipsychotic drugs, which have Black Box Warnings against use in elderly patients with dementia.
Antipsychotic drugs include: Risperdal, Haldol, Zyprexa, Abilify, Seroquel, Geodon and clozapine. These drugs are intended only for patients with psychotic conditions, such as schizophrenia or severe bipolar disorder. Many of these drugs, Risperdal particularly, are used inappropriately in the general population as well as in nursing homes. More information on Risperdal injury lawsuits can be found here.
According to federal investigators, the Department of Health and Human Services (which oversees Medicare and Medicaid) has done little to reduce antipsychotic drugs use in the elderly. Doctors sometimes prescribe these drugs to elderly patients with combative symptoms of dementia, such as hitting or yelling. This is not only extremely dangerous, but it is abusive and negligent as well.
Chemical restraints are common practice in nursing homes that have an inadequate number of employees. Because the staff is overworked, they are unable to care for each resident properly, particularly those who need more individual care and attention. In order to subdue, restrain, or make it easier to care for these residents, they are dosed with antipsychotic drugs.
Dementia is a complex and not-well-understood disease that causes severe changes in personality and mood, frequently resulting in agitation, violence or agitation. Understaffed nursing homes often turn to chemical restraints to suppress these symptoms of dementia, despite repeated warnings from the FDA.
According to these warnings, antipsychotic drug use in dementia patients is associated with increased risk of death and, if the patient survives, a severely decreased quality of life. The drugs can also increase the risk of serious falls, fractures, hospitalizations and other severe complications.
In February 2014 a psychiatrist in Chicago pled guilty to taking illegal kickbacks to prescribe clozapine (brand name Clozaril or FazaClo). Dr. Michael J. Reinstein received more than $600,000 to give this drug to thousands of elderly and mentally ill patients at 30 nursing homes. As a result of the lawsuit against him, Reinstein will pay $3.79 million to federal and state governments.
In our latest nursing home post we detailed the new guidelines for Medicare’s Nursing Home Compare website and how it could impact the quality scores of more than 15,000 American nursing homes. It was just confirmed that about a third of these nursing homes are getting lower scores because of the strengthened guidelines. Nursing home negligence lawyers at Pintas & Mullins explain these new quality scores.
Nursing Home Compare is a widely-used website run by the government, which scores nursing homes based on a five-star system. This site is used by millions of Americans in deciding which facility is best suited for their loved one. Unfortunately, the site has also come under intense criticism for its ratings system and its many flaws.
In response to criticism, Medicare has taken quite a few steps forward in revising the rating system. One of the most meaningful improvements was the inclusion of anti-psychotic drug use in nursing homes. Anti-psychotics, like Seroquel or Zyprexa, are frequently used in nursing homes – illegally – to subdue unruly or difficult residents. This is extraordinarily dangerous, as the FDA has repeatedly warned that anti-psychotic drugs can cause premature death in elderly people with dementia.
In addition to this new drug data, Medicare will also use more complex metrics to make sure the staffing levels are correct. Most of the information on Nursing Home Compare is self-submitted by nursing homes, including staff levels and quality measure.
Obviously, there is much concern regarding the validity of this self-reported data. There is really nothing stopping nursing homes from over-reporting how well they staff their facilities and generally overstating how well the facilities are run. The only data that is actually submitted by Medicare itself is information on the government inspections.
As stated, the new Nursing Home Compare rating system uses more refined metrics to confirm staffing levels. After these new metrics were put in place, more than 60% of nursing homes on the site got lower quality of care scores. Nearly 30% dropped one star overall, and about 3% of nursing homes dropped two stars.
This is the first time the five-star system has at all changed since 2008. Only about 340 nursing homes (out of 15,000) saw their overall ratings improve in response to the new metrics.
It is important to highlight that thousands of nursing homes hot the lowest possible score possible on anti-psychotic drug use. Alarmingly, 20% of the 15,000 nursing homes received just one star in the anti-psychotic drug use category for giving these medications to residents who do not have psychiatric conditions.
Our nursing home negligence lawyers recently reported on the broken system the government created to rate and compare nursing homes. After massive outcry from the public and industry insiders, the federal government is now taking immediate action to strengthen the Nursing Home Compare website so many families rely on to find quality nursing homes.
Nursing Home Compare, located here, is the Medicare website that ranks, grades, and compares almost every nursing home in the country. One of the largest problems with this website is that much of the information on the nursing homes are self-reported by the facilities. More often than not, the self-reported quality measures were much, much higher than the quality of care residents actually received.
This meant that many negligent and poorly-run nursing homes were rated highly on Nursing Home Compare when, in reality, they were understaffed and residents were routinely mistreated. Understaffed nursing homes often use drugs to control or subdue residents – a practice known as chemical restraints – which is a major focus of the government’s new overhaul.
Specifically, the government is making it harder for nursing homes to get high-quality rankings by increasing the scrutiny on antipsychotic drug use. Antipsychotics are medications like Seroquel, Zyprexa, Abilify and Risperdal that should never be given to elderly people with dementia, as it increases their risk of death. These drugs should ONLY be given to patients with severe mental conditions, such as schizophrenia, psychotic depression and bipolar disorder.
The grades on Nursing Home Compare are in the form of five-star ratings. The system was created in 2008 as a critical tool to help concerned, confused families determine the best nursing home to place their loved ones. The site profiles more than 15,000 nursing homes, comparing them based on: quality measures, staffing levels, and government inspections.
Both staffing levels and quality measures are determined, as mentioned, by self-reported data. This is problematic for obvious reasons; nursing homes should not be held to the honor code when they are responsible for the health and safety of our country’s most vulnerable citizens.
The “quality measures” section involves many factors, such as how many residents develop bed sores or are injured in falls. In the new government guidelines, this group will now also measure how many residents receive antipsychotic drugs. This information will still be reported to Medicaid by the nursing homes themselves. There are also new guidelines establishing verification of self-reported staffing levels.