The Star-Tribune had an article about one family’s fight for justice for their neglected dad.  Gerald Seeger was a resident of an assisted living facility, Lighthouse of Columbia Heights.  The facility failed to respond promptly when Seeger, repeatedly vomited and screamed for help while pointing to his badly swollen stomach. After hours of suffering, Seeger died of complications related to a common hernia. State investigators later cited the facility for failing to provide timely medical care.

In 2014 when Joan Maurer arrived at her father’s room at Lighthouse. She was shocked by what she found. Her father, a florist who just a week earlier had been laughing and stomping his foot to old-time music, had turned ashen and was vomiting in plastic cups, she said. Photographs from that day show that his stomach had swollen like a balloon.  Despite Seeger’s visible suffering, the staff had not called for emergency help.

“I knelt by his side, grabbed his hand and said, ‘Dad, I’ll get you to a hospital.”  Maurer called 911, and on the ambulance ride to the hospital, Seeger rated his pain as a “10 out of 10” on the pain scale, state records show. “I was horrified,” Maurer said. “I never want to see another human being in that much pain for as long as I live.”

Investigators from the state Department of Health later found multiple lapses in Seeger’s care. Despite a history of hernia problems, staff at the senior home failed to follow a physician’s instructions and notify medical professionals immediately if he had any pain or tenderness in the groin area, state records show. On the evening and overnight shift before he died, Seeger complained of stomach pain and vomited; but such symptoms were not promptly reported to a nurse, state investigators found.

His daughter had a strong legal case so she sued over the sudden death of her father.  But Maurer is still fighting for a chance to hold Lighthouse accountable in court. Attorneys for the facility claim that she forfeited the constitutional right to sue when she signed a densely worded contract that forced the family into private arbitration if a dispute arose, even one involving a wrongful death claim.

I never believed they would arbitrate my father’s life like he’s a piece of paper, and not a living, breathing human being,” said Maurer.

Over mounting objections from consumer groups and regulators, arbitration agreements like the one Maurer signed are proliferating in the senior care industry. Hundreds of Minnesota nursing homes and assisted-living centers now request that elderly people sign arbitration clauses on admission. The clauses require them to forfeit their right to a court hearing and, instead, lock elderly residents into a secretive process for resolving claims. Even in cases of extreme neglect and death, nursing homes use the clauses to block residents and their families from pursuing lawsuits.

 In Minnesota and nationally, more attorneys are seeking to throw out arbitration clauses, particularly in cases where there is evidence that elderly residents were coerced into signing the contracts. In a recent case, the Kentucky Supreme Court refused to enforce arbitration agreements in three wrongful-death cases, ruling that legal representatives of nursing-home residents lack the authority to waive another’s “God-given right” to a jury trial.

McKnight’s reported that the Trump Administration will continue the Obama Administration’s policy of discovering and punishing waste, fraud, and abuse in the nursing home industry.  However, based on Trump’s history of fraud himself, and the fact that he chose Tom Price as Secretary of DHHS, it does not appear that discovering and punishing health care fraud is on the top of the agenda.

Attorneys and former DOJ officials interviewed by Bloomberg BNA predicted that the new administration is likely to preserve several Obama-era policies in place. Those include the use of data analysis in fraud investigations, and the Yates plan to prosecute more individuals.

The department’s efforts to combat fraud in post-acute care will also likely remain a top priority, said Zane David Memeger, an attorney with Morgan, Lewis & Bockius. That may include the the DOJ’s regional nursing home task forces, launched last year to target “grossly substandard” facilities.

“We have an aging population, and nursing homes and home health, they’re vulnerable to fraud,” Memeger said.

He also indicated that fraud in the pharmaceutical and medical device industries will continue to receive DOJ scrutiny.

Vox reported on recent polling about ObamaCare and Americans’ confusion regarding the terms “Affordable Care Act” and “ObamaCare”.  Thirty-five percent either think Obamacare and the Affordable Care Act are different policies or aren’t sure whether they’re different policies. The confusion is worst among young people and those making less than $50,000, and it’s magnified when you begin asking about the consequences of repeal:

When respondents were asked what would happen if Obamacare were repealed, even more people were stumped. Approximately 45 percent did not know that the A.C.A. would be repealed — 12 percent of Americans said the A.C.A. would not be repealed, and 32 percent said they didn’t know.

The pollsters dug into more specific consequences of repeal, too. Among Republicans, only 47 percent knew that the Medicaid expansion and insurance subsidies would be rolled back — 29 percent said Medicaid and the subsidies would be unaffected, and another 24 percent weren’t sure. So fully 53 percent don’t know or don’t believe that repealing Obamacare would repeal its coverage expansion, too.

The basic message of this poll — that there’s a lot of confusion around what the Affordable Care Act actually is and does — is consistent with past surveys. The Kaiser Family Foundation, for instance, polled Trump voters on the Affordable Care Act, and found the Medicaid expansion, Medicare taxes, and out-of-pocket limits are popular even among Trump supporters:

 Kaiser Family Foundation

Republicans know they’ve benefited from voter confusion on this issue. It’s why Donald Trump’s health care policy could literally be to repeal Obamacare and replace it with “something terrific.” They also know that begins to end as soon as they release a real plan, and it really ends if they pass something into law. Which is why congressional Republicans are in disarray over their replacement strategy, Trump has begun making impossible promises about what will come next, and even Medicaid’s most committed opponents are admitting that slashing it is harder than they thought.

Vanity Fair had an interesting article about Republicans continued failure to repeal and replace ObamaCare.  Republicans are awakening to the treacherous reality of rewriting the nation’s health-care policy. The majority of Republicans in Congress acknowledge that the Affordable Care Act may never be completely unwound. First, Republicans dramatically pushed back their timetable for replacing President Obama’s health care law, settling on a strategy for an immediate, partial repeal followed by a multiyear replacement process. Now, CNN reports, Republicans are quietly beginning to add a third “R” word to their political lexicon: repair. The suggestion that Trump is considering saving certain aspects of the Affordable Care Act is a definite shift in the narrative after the Republican party has campaigned on repealing the law in its entirety for years.

With public support for universal health care in the United States at an all-time high and Trump insisting that his inchoate replacement plan will provide “insurance for everyone”, G.O.P. lawmakers are scrambling to craft an Obamacare replacement that won’t rattle insurance markets or tank their chances of re-election.”

Trump has made sweeping promises that nobody will lose coverage under his plan; that people with pre-existing conditions won’t be denied coverage; and that the A.C.A.’s Medicaid expansion won’t be rolled back—all of which are expensive. As the law currently stands, the Affordable Care Act is funded through taxes levied on insurers, medical device companies, high-income households, and employers with expensive health-care plans—all of which are on the chopping block. Republicans are racking their brains to devise a magic bullet, but health care experts are skeptical that any market-based solution exists.

Republicans are also reportedly still searching for a mechanism to prevent people with pre-existing conditions from only buying insurance coverage when they get sick. Obamacare relies on the individual mandate and its accompanying tax penalty, both of which Republicans swore to repeal.

Politico reports that tensions are rising within the G.O.P. as lawmakers struggle to identify an alternative to the mandate that isn’t at conflict with Republican “principles” and wouldn’t result in a spike in the uninsured rate.

Jonathan Chait for NY Magazine had a great article explaining why the Republicans crusade to kill Obamacare was always based on delusions that are no longer possible to conceal.  The delusions include that ObamaCare is unpopular; too expensive; and not effective.

Chait quotes, Richard Hanna, a Republican from New York who just retired from Congress: “At the end of the day, the Affordable Care Act will in some form survive, and the millions of people who are on it will have insurance,” he said. “It’s something this country needed and something people want. Politically, it’s untenable to just wipe it away. So who really won? In my argument, the president, Obama, won. At the end of the day we will have some sort of national health care that’s going to look very similar to what we have.”

Several Senate Republicans have opposed repealing Obamacare without a replacement.  The plan to quickly repeal, and then figure out a replacement, appears to have been halted, and the party has yet to decide what will take its place.

President Trump conceded that health care was “very complicated,” and floated a timetable for devising a replacement that could extend into next year:

Yes, in the process and maybe it’ll take till sometime into next year, but we’re certainly going to be in the process. Very complicated — Obamacare is a disaster. You have to remember Obamacare doesn’t work, so we are putting in a wonderful plan. It statutorily takes a while to get. We’re going to be putting it in fairly soon. I think that, yes, I would like to say by the end of the year, at least the rudiments, but we should have something within the year and the following year.

As the Republicans continue their long retreat, they are encountering every false premise that brought them to this point. The most important of these is a misconception about Obamacare’s popularity. Now it is advocates of Obamacare mobilizing in anger and chasing terrified Republican members of Congress down the street. Conservatives spent years lionizing demonstrations against Obamacare as the justifiable anger of a free people.

The law’s growing popularity can be seen across several dimensions. Repealing Obamacare first, without a replacement, is wildly unpopular, drawing 20 percent approval or less. Repealing the law and starting over with a new one — the Republican position since 2010 — draws support from one-third of the public, while keeping Obamacare and fixing it gets nearly twice as much support. On the straightforward question of whether Barack Obama’s health-care reform was a good idea or a bad one, for the first time ever, “good idea” now wins:

Image

And Americans by a significant margin believe it is the government’s responsibility to make sure everybody has coverage:

Image

The chart above is especially telling. Notice that a huge majority agreed that the government should cover everybody before and after Obama’s presidency, but that support collapsed during the time of an administration attempting to implement this goal.

The second delusion is the cost of health care.  While GOP rhetoric has lambasted the cost of plans offered by Obamacare, their alternatives would all impose even higher costs. Hospitals are demanding that Republicans either keep covering the Americans who have insurance through Obamacare, or else compensate the hospitals for the losses they would suffer from facing millions of customers who can longer pay for their care. AARP has staked out opposition to one of the GOP’s favorite proposals to charge even higher rates to older customers. Obamacare only permits insurers to charge older customers up to three times as much as the young. Republicans have railed against the burden this places on younger workers buying insurance — and it’s true that Obamacare makes the young pay more so the old can pay less.

The pattern of the three months since the election shows the cause of Obamacare repeal collapsing because ObamaCare is effective in providing coverage, increasing access, and lowering the cost of health care. Obama and his party were able to design a plan that squared the minimal humanitarian needs of the public with the demands of the medical industry.

Cleveland.com reported that Edward McShaffrey was sentenced to 18 months in prison for sexually abusing a nursing home resident and will be classified as a tier I sex offender. The designation will require him to register with the local sheriff every year for 15 years.

A jury found McShaffrey guilty in December 2016 of gross sexual imposition. The sentence is the maximum allowed for this particular crime.   McShaffrey was a licensed practical nurse at Brookdale Montrose Nursing Home. McShaffrey was seen with his mouth on the 69-year-old’s breast, according to a news release from the prosecutor’s office.

 

McKnight’s reported the tragic case of Johnny Lee Bryant who was admitted to Doctors Hospital in Augusta, GA, in early January 2015  from The Place, a nearby long-term care facility. He was treated at the hospital for sepsis and pneumonia until Jan. 15, 2015, when he was discharged.  Bryant was transported by Gold Cross EMS to a nursing home in Bainbridge, GA — a city 300 miles away. Once there, the nursing home refused to admit Bryant, the Augusta Chronicle reported. He died in February 2015.

His sister is suing the hospital, physician and ambulance service accusing the hospital, the ambulance company and Hetal Thakore, M.D., of negligence, wrongful death and causing emotional distress.

UNITED HEALTH SERVICES OF GEORGIA, INC. ET AL. V. NORTON ET AL. (S16G1143)

PruittHealth, Inc. is frivolously appealing a Georgia Court of Appeals decision allowing a man’s wrongful death lawsuit on behalf of his deceased wife to proceed in court against one of its nursing homes, even though his wife had allegedly signed an arbitration agreement when she entered the home.

FACTS: From April 2013 until her death in April 2014, Lola Norton lived at PruittHealth-Toccoa nursing home, which is owned and managed by United Health Services of Georgia, Inc. While in the facility, Lola allegedly suffered injuries and harm, including falls, fractures, weight loss, and ultimately death. Following her death, her husband, Bernard Norton through his son and power of attorney, Kim Norton, filed a lawsuit claiming several causes of action including wrongful death, and alleging that all of Lola’s injuries and death were the result of the nursing home’s inadequate care and inadequate staff.

The lawsuit was against PruittHealth, United Health Services and seven other defendants who are affiliates or employees of PruittHealth. In response, the defendants filed a motion asking the court to dismiss the case, or in the alternative, to stay the proceedings and compel arbitration. The trial court granted their motion and compelled the entire case and all its claims to arbitration. Norton and his family appealed, and the Court of Appeals partially reversed the trial court’s ruling.

While the Court of Appeals found that the estate claims were barred by the arbitration agreement, it reversed the trial court’s order compelling arbitration of the wrongful death claim. The appellate court found there was no evidence that Lola’s wrongful death beneficiaries had entered into an agreement of their own to arbitrate their separate, distinct claims. United Health Services, PruittHealth and the others now appeal to the Georgia Supreme Court, which has agreed to review the case to determine whether an arbitration agreement signed by a person during her lifetime, which binds her and her estate to arbitration in the event of a dispute, is enforceable against her beneficiaries in a wrongful death action.

Attorneys for the Nortons argue the Court of Appeals correctly determined that wrongful death beneficiaries who are not parties to an arbitration agreement are not required to arbitrate their claims. “The Federal Arbitration act does not mandate enforcement of the arbitration agreement in this matter,” they argue in briefs. “Here, Lola Norton’s wrongful death beneficiaries were not parties to the arbitration agreement” she had signed during her lifetime, and Lola “did not have the authority to send her wrongful death beneficiaries’ claims to arbitration.”

Georgia law also does not require enforcement of the arbitration agreement against the wrongful death beneficiaries in this matter, the lawyers contend. United Health Services and the others incorrectly argue the Court of Appeals erred by treating arbitrations differently than other contracts. Under Georgia Code § 13-3-1, a valid contract contains three elements: subject matter of the contract, consideration, and mutual assent by all parties to all contract terms. “Lola Norton’s wrongful death beneficiaries were not parties to the arbitration contract at issue and, like any other contract related to the forum or any other procedural defense, there is simply no contract regarding their claims,” the attorneys contend.

“Wrongful death claims are required to be brought by a different party than survival/estate claims, have separate damages, and a separate statute of limitations.” “Since wrongful death beneficiaries have their own separate and distinct claim, it is also logical that they should have a say in where and how their claim will be litigated,” the family’s attorneys argue. “Wrongful death beneficiaries cannot lose their right to choose their forum or whether to arbitrate their claims if they did not…sign a contract or agreement to arbitrate.” Finally, courts in other states have reached a similar conclusion as the Georgia Court of Appeals regarding wrongful death beneficiaries’ claims, the attorneys contend.

 

The Post and Courier reported that South Carolina does not have enough nursing home beds for all the veterans that need them.  Records obtained by The Post and Courier reveal as many as 1,700 former soldiers, sailors, airmen and Marines are waiting for a bed in one of the state’s three skilled nursing homes reserved for them. Other sources of information indicate far more veterans are waiting for a bed at a state nursing home. For instance, grant applications completed by Mental Health officials suggest that roughly 1,400 veterans were on “inactive” waiting lists as recently as 2015. And in a January 2016 report authored by a legislative subcommittee, it was determined that roughly 1,700 names were on so-called “general” waiting lists.

The figure is expected to swell in the years ahead as tens of thousands reach their upper ages, especially those from the Vietnam era.  There are an estimated 400,000 veterans living in South Carolina. Yet there are just 530 state-funded beds for all these veterans. A 2015 study found that the space shortage in the state could be as high 3,589 beds.

There are “chronic waiting lists” at all three of the department’s veterans’ nursing homes.  Most of the vets in South Carolina’s nursing homes, and on waiting lists, are considered Vietnam-era veterans, who represent about one-third of the state’s total.

Currently, there are state-operated veterans’ nursing homes in Columbia, Walterboro and Anderson. In the Charleston region, the nearest nursing home tailored to former soldiers is the Veterans’ Victory House in Walterboro.

The state has plans to build at least three more such homes.  However, adding three homes won’t be cheap and is contingent upon uncertain chances of funding from the Trump Administration. The cost of each new nursing home, which would be built in Florence, Gaffney and Columbia, is expected to be roughly $40 million per location. If the grants are funded by the VA, the federal government would cover 65 percent of the construction costs, or about $25 million per nursing home. The state would still have to come up with about $15 million per location and will have to fund the nursing homes’ ongoing operational expenses, which are expected to be about $7 million annually per location in state money. Federal funding from the VA is expected to cover the remaining $8 million in annual expenses.

 

 

CNN had an interesting article on how Republican governors want to keep ObamaCare’s expansion of Medicaid.  16 Republican governors are in states that have expanded Medicaid in their states, even though the Supreme Court ruled it wasn’t mandatory under Obamacare.  Republican governors met with the Senate Finance Committee the day before Donald Trump’s inauguration to stress the importance of keeping the Medicaid expansion and other programs like it across the country, funded.

The federal government began funding 100% of the cost of the expanded enrollment nationwide, but it will be stepping down to 90% by 2020. But, with the Trump administration and Republicans in Congress on course to repeal, and potentially replace, Obamacare, all of that funding for Medicaid expansion could go out the window.