Commons Dreams had an article expressing disbelief with Trump’s plan to force nursing home residents into arbitration instead of protecting their constitutional right to a jury trial.

Rep. Ted Lieu asked “Why does Trump hate grandmothers?” as he decried a proposal from the administration that would prevent abused or mistreated seniors in nursing homes from getting their day in court, jeopardizing their health and safety.

Fellow lawmakers as well as patient and consumer advocacy groups like Public Citizen, said the effort to roll back protections from some of society’s most vulnerable people is just part of “a disturbing trend of the Trump administration attempting to reverse critical protections against forced arbitration,” which prevents individuals or groups of people from filing lawsuits or seeking damages for fraud, abuse, neglect, medical malpractice and other forms of wrongdoing.

“Forced arbitration clauses in nursing home agreements stack the deck against residents and their families who face a wide range of potential harms, including physical abuse and neglect, sexual assault, and even wrongful death at the hands of those working in and managing long-term care facilities,” the letter (pdf) states. “These clauses prevent many of our country’s most vulnerable individuals from seeking justice in a court of law, and instead funnel all types of legal claims, no matter how egregious, into a privatized dispute resolution system that is often biased toward the nursing home. As a result, victims and their families are frequently denied any accountability for clear instances of wrongdoing.

Lauren Saunders, associate director of the National Consumer Law Center, said “Everyone should be outraged that the Administration is proposing to strip legal rights from fragile seniors and their families during the incredibly stressful time when a loved one is entering a nursing home.”

New Mexico Attorney General Hector Balderas is trying to stop elderly abuse in nursing homes.  KFOX TV reported that New Mexico’s attorney general is launching a new campaign to prevent elderly abuse in nursing homes.

He’s ordered the state to review documents and evidence of abuse that would lead to an investigation on any facility.

“We also look at whether or not they are being cared for appropriately, according to their care plan, and we also look at a variety of injuries and things of that nature,” said Richard Chavez, the AG’s special agent supervisor.

Once enough evidence is gathered, the attorney general’s office will try to prosecute offending homes.

Benziga had an article about the National Academy of Elder Law Attorneys (NAELA) submitted a NAELA letter to CMS urging the agency to withdraw its new proposal to allow forced arbitration provisions in nursing home admission contracts to prohibit a trial by jury.  Established in 1987, NAELA is a non-profit association that assists lawyers, bar organizations, and others. The mission of NAELA is to establish NAELA members as the premier providers of legal advocacy, guidance, and services to enhance the lives of people with special needs and people as they age.

“It’s very disheartening to see CMS’s about-face. The truth is individuals who need nursing home care are often under extreme duress to get admitted and cannot imagine they will be subject to the opposite: physical violence, sexual abuse, or extreme neglect when they arrive,” said NAELAPresident Hyman G. Darling, CELA, CAP.

According to the letter, “if CMS cannot elucidate a precise reason as to why residents would now be better off giving up their rights before they might fully realize what they have lost, it cannot categorize this reversal as an improvement over anything.”

Yolanda Monsalvo. a nurse aide was found guilty of falsifying business records at Medford Multicare Center for Living nursing home to cover up patient neglect, prosecutors said, joining other co-workers also convicted of various crimes.

Monsalvo left her dementia patients with no supervision — and one of them broke an arm and suffered head injuries from a fall, officials said. She was convicted partly due to video surveillance footage, which showed she left the building where she was supposed to be monitoring her patients, including the one who then fell.

“Nursing home caregivers are entrusted to provide the highest level of safety and care to our most vulnerable residents,” he said. “There are serious consequences for abandoning nursing home residents and then trying to cover up neglect.”

Last June, the firm and its owners paid $28 million to settle a lawsuit charging them with looting the nursing home, committing fraud and breaking the law in running a business, according to Attorney General Eric T. Schneiderman.

The corporation paid a $10,000 fine after pleading guilty to attempted falsifying business records, part of a coverup in the death of a 72-year-old patient, he said.

Monsalvo, now facing a maximum sentence of 4 years, was indicted in April 2016 for “lying in an investigation report” about another patient’s fall from a wheelchair, Schneiderman said in a statement on Friday.

Forbes had an article criticizing the Trump’s Administration decision to allow nursing homes to restrict resident’s constitutional right to a jury trial.

When your loved one needs nursing home care but the facility requires you to sign a mandatory arbitration agreement that states you will not sue, even if your loved one gets mistreated, neglected or abused. If you sign the agreement, your only option may be “third party arbitration”. If you don’t sign, you may not be able to get your loved one into the right nursing home. What will you do?

President Barack Obama signed a Centers for Medicare and Medicaid Services (CMS) rule to help prevent such a scenario from happening. Obama’s rule would prevent any nursing home that receives Medicare or Medicaid funds (which is a lot of them) from enforcing such “no sue” agreements. But now this rule was overturned by President Donald Trump’s administration.

The conditions and quality of care at nursing homes are extremely variable, ranging from good to appalling. A study conducted by researchers from UCSF (Charlene Harrington,Helen Carrillo, and Taewoon Kang) and the University of California-Irvine (Brian Olney) published in Health Services Research  found a number of staffing and quality of care deficiencies in many for-profit nursing homes.

According to the Centers for Disease Control and Prevention (CDC), each year 1 to 3 million serious infections occur in long-term care facilities with as many as 380,000 people dying as a result.

As the U.S. News and World Report described, a study published in the American Journal of Infection Control showed that about 15 percent of U.S. nursing homes were cited for lack of adequate infection control procedures.

As David Ruppe reported previously for ABC News, a Congressional study found that from January 1999 to January 2001, 30 percent of U.S. nursing homes had a total of nearly 9,000 cited instances of abuse with 1,601 cases causing harm or putting residents at risk for serious injury or death. And such abuse is not just out of neglect. Nursing home staff have assaulted and even sexually assaulted nursing home residents, as detailed in a story by Blake Ellis and Melanie Hicken for CNN .

Over 75 consumer groups have banded together to oppose changes to Obama’s rule. The Fair Arbitration Now (FAN) Coalition argued on their web site that retaining the right to sue is important protection for consumers:

Most people don’t know that forced arbitration clauses are buried in the fine print of many contracts to receive products and services, and even to obtain employment. These contract clauses force people to give up their right to go to court – even if a company harms them or rips them off. Instead consumers are pushed into secret arbitration. In arbitration there is no judge, jury, and decisions are rarely appealable. Arbitrators do not have to follow the law. Civil rights and consumer protection laws can become meaningless in arbitration. That’s why we need a federal law to make arbitration truly voluntary. Eliminating forced arbitration clauses from contracts will give us – consumers and employees – the power to choose court or arbitration after the dispute arises.

 

A New York Court struck the Answer of a nursing home for failure to respond to discovery including providing a complete copy of the resident’s nursing home chart. See Order in Schiller v. Sunharbor.

“In 2011, Georgette Schiller, as executrix of the estate of Bernice A. Schiller, deceased, and individually, commenced this action against, among others, Sunharbor Acquisition I, LLC, doing business as Sunharbor Manor, OG Operator, LLC, as successor to Sunharbor Manor, and Sunharbor Manor, LLC, doing business as Sunharbor Manor (hereinafter collectively the defendants). The plaintiff alleged that the decedent received care and treatment at the defendants’ nursing home, and that the defendants’ negligence caused an infection in the decedent’s left leg, which ultimately required amputation of her leg above the knee and resulted in her death. Almost four years after she commenced the action, the plaintiff moved, inter alia, pursuant to CPLR 3126 to strike the defendants’ answer on the ground that the defendants were willful and contumacious in their failure to respond to the plaintiff’s repeated demands for the decedent’s entire medical record and the Supreme Court’s orders related to the same. The court granted that branch of the plaintiff’s motion which was to strike the defendants’ answer, and the defendants appeal.”

“Here, the defendants’ repeated failures, over a period of years, to respond to the plaintiff’s discovery demands, even after being directed to do so by multiple court orders, without adequate excuses, constitutes willful and contumacious conduct.”

The Miami Herald reported the criminal charges of bribery against Bertha Blanco, a Florida health care administrator in exchange for helping a nursing home owner accused of orchestrating a $1 billion Medicare and Medicaid fraud scheme keep his license.  The wide-ranging investigation that federal authorities are calling the nation’s biggest health fraud case.

Blanco made about $31,300 a year overseeing inspections at nursing facilities owned by Philip Esformes, a wealthy businessman who owns dozens of Miami-Dade nursing facilities as well as homes in Miami, Los Angeles and Chicago.

A criminal complaint filed against Blanco accused her of taking tens of thousands of dollars in cash in exchange for tipping Esformes off about violations so he could address them before state inspections.  Blanco’s aid allowed Esformes to keep his license active and continue billing the federal government for questionable patient services.

Federal authorities say Blanco took the bribes and provided patient and inspection records to intermediaries, who delivered the information to Esformes.  Two of those intermediaries, brothers Gabriel and Guillermo Delgado, have made plea deals and are expected to testify against Esformes. The brothers helped investigators get to Esformes by videotaping a cash transaction that prosecutors said was meant to go for bribes.

Esformes is accused of using his 20 nursing facilities to file false Medicare and Medicaid claims for services that were not necessary for 14,000 patients.

Prosecutors said his health care network and other co-conspirators billed $1 billion for fraudulent services between 2009 and 2016.

The New York Times had an article explaining how the Problem Solvers Caucus is trying to fix ObamaCare.  This is not the time for more partisan fighting.

“Our proposal first focuses on the most urgent crisis: the skyrocketing cost of individual health insurance premiums. The Trump administration is considering suspending cost-sharing payments that defray out-of-pocket payments like deductibles and co-payments for people earning less than 250 percent of the poverty line. Because of uncertainty about this subsidy, insurers have said premiums could rise by 15 percent or more. On Aug. 16, insurers must submit their 2018 rates to state regulators for approval; many may be forced to leave the individual marketplace altogether.”  This plan will stabilize markets by making the cost-sharing payments mandatory and prevent rates from rising sharply.

“Second, we provide a relief valve to help states deal with the high cost of pre-existing and chronic conditions. The costliest 5 percent of patients account for nearly half of all health care spending in the country. We propose a dedicated stability fund — essentially a form of reinsurance — that states could use to reduce premiums and limit losses for providing coverage for these high-cost patients.”

“Third, our proposal provides relief to certain businesses from the mandate that they provide insurance to full-time employees. It also defines “full time” as a 40-hour workweek to discourage businesses from manipulating employees’ weekly hours to skirt the mandate. More than 90 percent of large businesses offered health care before the Affordable Care Act, and studies show that they would continue to do so under this change; others would move to find employee coverage in the individual marketplace.”

Fourth, the plan eliminates the Medical Device Tax, an excise charge of 2.3 percent. And finally, we provide states with additional flexibility to enter into agreements — such as enabling the sale of insurance across state lines — that would provide more choice and lower costs.

This proposal would not increase the federal deficit, offering several options to offset the new spending.

The West Virginia Record reported the lawsuit filed against national for-profit chain SavaSeniorCare.  The case involves a resident of Huntington Health and Rehabilitation Center which is owned by SavaSeniorCare and operated by SavaSeniorCare Administrative Services LLC; and SavaSeniorCare Consulting LLC.

Maria Webber, as personal representative of the estate of Katherine Foley, filed a complaint against Seventeenth Street Associates LLC, doing business as Huntington Health and Rehabilitation Center; SavaSeniorCare Administrative Services LLC; and SavaSeniorCare Consulting LLC alleging negligence, wrongful death and other counts.

 According to the complaint, Foley was a resident from Sept. 3 to Sept. 24, 2016. The plaintiff alleges that during her short stay there, Foley suffered from avoidable pressure ulcers, infections and dehydration causing her wrongful death on on May 7, 2017.

The plaintiff contends that Defendants neglected Foley including failing to monitor Foley’s condition and failing to timely provide the services to prevent her ailments.

 

The Advocate had a letter explaining why staff turnover is so high in nursing homes.

“As with all nursing homes, there is a poor retention rate for the certified nursing assistants who keep the doors open; no one who owns a nursing home would do what they do. This is a backbreaking job that requires lifting, tugging and pulling to provide the care the residents need. They contend with medical equipment that includes a tracheostomy, feeding tube, ventilator, colostomy bag, Foley catheter, IV’s, oxygen mask/line, etc. They deal with bed sores and bathe, dress and groom the residents. All of this at a starting salary of $8 or less per hour depending on your experience.”

The average unit at a nursing home has at least 30 residents, and most of the time, there are 3 CNAs assigned. If you are assigned 10 residents, and five of them are to be spoon-fed or are incontinent, someone is going to get cold food, be hungry or lay in soiled clothing for some time because the CNA only attended to one resident at a time.