Nursing Home News

Nursing Home Industry Fights Back Against New Rules Restricting Arbitration Clauses

October 28, 2016 | Lebowitz & Mzhen

Earlier this year, the Centers for Medicare and Medicaid Services (CMS) issued a new rule that nursing homes that include binding arbitration clauses in their contracts will not be eligible for federal funding. In a recent development, the American Health Care Association (AHCA) – a non-profit group formed to advance the interests of the nursing home industry – filed a lawsuit in an attempt to block the newly announced rule.

According to one news report covering the recently filed case, the AHCA and several other nursing home advocacy groups claim that the CMS and the Department of Human Services overstepped their legal mandate in creating the rule. The groups seek to have the rule removed so that nursing homes that implement binding arbitration clauses can once again receive federal funding.

Nursing home advocates claim that arbitration benefits residents and their families because it enables the inexpensive resolution of claims. By some estimates, arbitration can reduce the cost of litigation for nursing homes by 30-35%. By decreasing the costs associated with defending a claim, the argument goes, nursing homes are more willing to offer fair settlement terms to injured residents and their families.

Federal Funding Cut for Nursing Homes That Force Residents and Their Families into Arbitration

October 12, 2016 | Lebowitz & Mzhen

Before a resident is admitted to a nursing home, a contract must be signed. The contract outlines both parties’ rights and responsibilities, as well as setting out some ground rules in the event that the resident or their family sues the nursing home. Over the past decade, more and more nursing homes have included arbitration clauses in these contracts, forcing residents to resolve all disputes through a third-party arbitration company rather than use the court system.

In these contracts, the forum of the arbitration is often chosen by the nursing home, and the outcomes of disagreements have historically favored nursing homes. However, in a very important new rule announced by the Department of Health and Human Services, nursing homes that require residents and their families to submit to arbitration rather than the court system will no longer receive federal funding. It is estimated that this new rule will affect 1.5 million nursing home residents nationwide.

Since the nursing home industry has benefited greatly from these arbitration clauses, the industry has reacted negatively to the new announcement. In fact, one spokesperson attacked the Department of Health and Human Services’ legal authority to implement such a rule, saying that the rule “clearly exceeds” the agency’s authority. He also claimed that the rule was “wholly unnecessary to protect residents’ health and safety.”

Nursing Home Resident Kills Fellow Resident in Shooting, Later Commits Suicide

September 23, 2016 | Lebowitz & Mzhen

A 77-year-old Wyoming nursing home resident and one other person are dead, and three others injured, after a shooting occurred near the nursing home where the perpetrator lived. A local news report was recently published describing the shooting, which began at about 11:00 AM on Wednesday, September 14, outside the nursing facility. The condition and identities of the injured victims have not been released to the public, but the perpetrator, who turned the gun on himself after initially fleeing the scene of the shooting, was identified as a 77-year-old resident of an apartment complex adjacent to the nursing facility.

It Is Not Clear If Personal or Mental Health Issues Led to the Shooting

According to the news report from the scene of the fatal shooting, there may have been personal issues behind the man’s motivation to commit the shooting, although there were conflicting reports of what happened. It is possible that the perpetrator suffered from a mental health condition and should not have been in possession of a firearm in the days and hours leading up to the shooting.

Nursing Home Resident Chokes and Dies While Chewing Food Without Dentures

September 16, 2016 | Lebowitz & Mzhen

According to a recent article, a resident at a nursing home in New York died after choking on a grilled cheese sandwich provided by nursing home staff. The women had been diagnosed with dementia and required dentures to chew her food, but she was not wearing her dentures at the time she choked on the sandwich. The woman’s son is suing the nursing home for damages due to negligence on the part of nursing home staff.

As Americans live longer and the population continues to age, more and more adults find themselves moving into assisted-living facilities or nursing homes. These facilities provide a wide range of services, including medical care, food services, and assistance with many activities of daily living, like taking a shower, getting dressed, and using the toilet.

Providing such a wide range of services comes with responsibility. In Maryland, nursing homes and assisted living providers must take reasonable care when providing these services, and a failure to take such care is considered negligence. When negligence is committed, residents or their family members may be eligible for compensation for injuries suffered as a result of the negligence.

Federal Government Expands Regulations to Protect Nursing Home Patients from Other Types of Abuse

August 19, 2016 | Lebowitz & Mzhen

The federal government has recently announced plans for new regulations that will crack down on the problem of residents being abused by nursing home employees. Specifically, the new regulations are designed to target a recently occurring problem of nursing home employees taking demeaning photographs and videos of residents and sharing them on social media sites. Recently published articles by a patient advocacy group have documented the worsening phenomenon and the federal response.

The Federal Government Can Use Medicare to Urge States and Nursing Homes to Prevent Abuse

Most nursing homes are administered by private organizations or state or municipal governments, but the federal government contributes to the costs for each resident in a vast majority of those homes in the form of Medicare payments made on the resident’s behalf. Although the federal government generally lacks direct regulatory authority to compel state or privately run nursing homes to implement certain policies, it can tie compliance with anti-abuse policies into the nursing home’s receipt of Medicare funds, which often comprise most of the payments the nursing homes receive.

Nursing Home Arbitration Clauses May Punish Patients and Families For Expecting Quality Care

August 5, 2016 | Lebowitz & Mzhen

Arbitration clauses have become more and more common in many types of contracts between consumers and businesses over the last 50 years, However, the dramatic increase in the use of arbitration clauses in medical care agreements should be of special concern to consumers and their advocates. By agreeing to an arbitration clause, a patient or their family may be giving up their right to sue the other party in state or federal court and instead assenting to resolve disputes through what is known as binding arbitration. Binding arbitration is a process that closely resembles a judicial proceeding, although the “judge” of an arbitrated dispute is simply a private party, and the court rules and procedures that are used in judicial proceedings may not apply.

Why Do Providers Propose Binding Arbitration, and Why Would Consumers Agree to It?

Binding arbitration is promoted by companies and industry groups as a simplified way of resolving disputes that could get out of hand if they were processed through a full-fledged judicial proceeding. Complainants are legally entitled to a fair process through arbitration, and state and federal laws are applied to their claims.

In reality, the differences between an arbitration proceeding and a judicial proceeding almost always favor the large company, with consumers and patients receiving the short end of the agreement. A recent New York Times article discussing the use of arbitration agreements in nursing home contracts notes that although agreeing to binding arbitration cannot be mandatory for a prospective patient, the agreements are often structured to hide that fact. Many consumers agree to arbitrating potential disputes because they don’t know they have the right to refuse it.

Increasing Use of Social Media Has Resulted in Unexpected Nursing Home Abuse

July 26, 2016 | Lebowitz & Mzhen

A recently published news article discusses the difficulty that law enforcement and regulatory authorities have been facing nationwide in attempting to apply existing laws to curb the increasing pattern of “social media abuse” of long-term care and nursing home residents by health care workers. According to the article, there have been dozens of reported instances in which health care workers publish explicit photos or videos of nursing home patients on social media. The resulting posts have been offensive, hurtful, and exploitative of the nursing home patients, and they demonstrate the unprofessional levels of care that some nursing facilities provide.

Current Laws Addressing Nursing Home Abuse May Not Go Far Enough

According to a recently published report noted in the article, current laws in many states protect nursing home patients from social media abuse by making it illegal for a health care worker or assistant to post an image containing a resident’s genitals on social media. Unfortunately, many of the abusive and humiliating posts that have been made don’t include an image of a patient’s genitals but remain extremely offensive. One such post mentioned in the article included an image of an elderly resident’s hands and legs covered in feces, accompanied by a caption that contained profanity and made fun of the man.

One State Considers Banning Anonymous Abuse Complaints in Nursing Homes

April 28, 2016 | Lebowitz & Mzhen

Nursing home abuse is a tragic phenomenon, and everything should be done to curb it. Whether it be an overworked nurse who snaps at a difficult resident, or an angry employee who takes out their own aggression on those who cannot fight back, there is no excuse for engaging in nursing home abuse. However, the sad reality is that nursing home abuse is grossly underreported, with many residents afraid to report the abuse of those who are responsible for their daily care out of fear of reprisal.

Despite that fact, one state is considering a bill that would eliminate a person’s ability to anonymously report nursing home abuse. According to an article by U.S. News and World Report, Illinois legislators are considering a bill that would require each complaint of nursing home abuse to be accompanied by the reporter’s name. If the person calling does not want to provide their name, the report will not be filed.

Of course, doing away with anonymous reporting will limit the number of complaints of abuse, which is why the nursing home industry is in favor of the bill. In fact, about 20% of all abuse allegations currently reported are done so through anonymous calls. While the bill’s sponsor claims that the names of reporters would be held confidential, the mere fact that callers are require to disclose their identity will likely result in fewer calls.

Politicians Speak Out against Nursing Home Abuse Posted on Social Media

April 7, 2016 | Lebowitz & Mzhen

The thought of a nurse who is charged with the care of elderly individuals engaging in a pattern of abuse against his or her patients is bad enough, but lately there has been a rash of cases in which abusive nurses are filming the abuse and posting the videos on social media. The victims in these videos are almost always mentally or physically ill nursing home residents who do not have the ability to fight back or even to ask their abusers to stop.

Of course, this kind of conduct is a violation of the duty of care that all nurses have to their patients. In fact, this duty of care extends beyond just licensed nurses and applies to anyone charged with the care of another person in a skilled nursing facility. When this type of abuse is discovered, the abused individual or their family may be able to seek financial compensation for the abuse and humiliation suffered through a Maryland nursing home abuse lawsuit.

Politicians Condemn Nursing Home Abuse, Seeking More Prosecutions

Aside from being a violation of the duty between caretaker and resident, nursing home abuse is also against the law. In fact, according to one news report, the Chairman for the Senate Judiciary Committee has been probing the U.S. Justice Department about how aggressively it pursues cases alleging nursing home abuse that has been posted on social media.

Arbitration Clauses in Nursing Home Contracts: Are They Binding?

March 7, 2016 | Lebowitz & Mzhen

In an ideal world, a nursing home would care for elderly people and allow them to live out their last years in peace and with dignity. However, anyone who has kept an eye on the headlines knows that this is not always the case. In too many cases, nursing home employees neglect or abuse the very residents for whom they are charged with caring. In such cases, the abused resident or their family may want to hold the nursing home responsible through a civil lawsuit seeking monetary compensation for their loved one’s suffering.

However, nursing homes, like many other businesses, have started to include arbitration clauses in the contracts that are signed prior to resident admission. These arbitration clauses are essentially an agreement not to go through the legal system, should any problems arise between the parties. Instead, the case would go before an arbiter whose decision very likely would be final.

The problems with arbitration clauses are several, but the chief concerns are that they are out of the public eye and are not always neutral. This is because the nursing home contract will often designate which arbiter will handle the case, essentially allowing the nursing home to pick their own “judge.”