McKnight’s had an article about a decision in Colorado regarding the enforcement of an arbitration clause in a nursing home case.  The Colorado court ruled that a healthcare proxy does not have the authority to sign an arbitration agreement on behalf of a nursing home resident.  Under Colorado law, a healthcare proxy is only empowered to make medical decisions on behalf of another, including “provision, withholding, or withdrawal of any health care, medical procedure, including artificially provided nourishment and hydration, surgery, cardiopulmonary resuscitation, or service to maintain, diagnose, treat, or provide for a patient’s physical or mental health or personal care,” the Bureau of National Affairs reported.

In the case of Lujan v. Life Care Centers of America, Colorado, Alvin Lujan signed an arbitration agreement, waiving jury trial rights, when admitting his mother, Estella Lujan, to the Life Care Centers of America nursing home. She died three days later, and a wrongful death claim was filed against the facility. Life Care Centers argued that admission to a nursing home is a medical decision and, therefore, the Colorado law applies.  But the Colorado Court of Appeals determined that the signing of an arbitration agreement does not fall under the specific definition of the authorities given to a healthcare proxy. As a result, the Lujan family had the right to sue the facility.

In October, the Nebraska Supreme Court arrived at a similar decision regarding the roll of patient surrogates

There have been several articles about the recent sale of nursing homes by CapitalSource.  The articles are unclear about which nursing homes will be sold.  Below are links and information from several articles.

McKnight’s wrote that CapitalSource, commercial lending company to many nursing home chains, will sell off its long-term care interests to Omega Healthcare Investors in a deal valued $860 million.   The sale covers a CapitalSource lease portfolio that includes 143 long-term care facilities.  Under the deal, Omega Healthcare Investors, which already owns or holds mortgages for 254 skilled nursing and assisted living facilities, will assume $529 million in asset-related debt, and give CapitalSource $280 million cash and $51 million in OHI stock.   A second article from McKnight states that CapitalSource Inc.,sold the last of its nursing home interests. This marks the company’s exit from the skilled nursing ownership business.  The latest sale takes CapitalSource out of nursing home ownership, but it says it will continue to provide financing for owners and operators of long-term-care facilities.

CapitalSource sold the 37 nursing homes to an undisclosed buyer for an all-cash price of $100 million, the company said in a statement. The money will be used to pay down debts associated with the properties. The sale is part of a wider sale of its net lease portfolio, including the already disclosed divestiture of 143 skilled nursing facilities to Omega Healthcare Investors, Inc. CapitalSource will continue to provide financing for owners and operators in the long-term care industry, according to a company spokesman.

This final sale, along with the Omega sale and a Department of Housing and Urban Development mortgage financing deal, should net CapitalSource $495 million. The company said it would use these revenues to reduce the balance on its syndicated bank facility and add to overall company liquidity. The additional liquidity should put the company in a position to expand its healthcare lending franchise, the CapitalSource release said.

The Washington Post had an article on the sale stating that CapitalSource needed help to relieve the debt acquired during the recession.  CapitalSource is a specialty financing companies that has been hit hard by the credit crisis and the recession. Auditors at Bethesda-based American Capital issued an opinion earlier this year that the firm was in danger of not continuing as a business.  The company has disappointed analysts this year because of higher-than-expected losses on its loans to businesses and commercial real estate developers.

CapitalSource, which makes loans from $10 million to $100 million to nursing homes, said selling its 180 nursing homes is part of its transition to a bank. The company earlier this year changed its status from a publicly traded real estate investment trust to a bank.  James Pieczynski, who runs CapitalSource’s health-care lending business, and Steven Museles, the company’s chief legal officer, will become co-chief executives.

 did a great article about the lack of knowledge and trainig at a NHC facility based on a DHS reports here and here.   The Virginia Department of Health conducted an annual, unannounced inspection Oct. 6-8 and the results were recently made public. Inspectors wrote that many NHC Bristol staff members were unaware they are legally required to report patient abuse to local law enforcement or to state regulatory agencies.

Also, the DHS Report on NHC Healthcare alleges that the home administrator once failed to notify a patient’s representatives of a sexual abuse claim that had become part of an ongoing police investigation. “I figured they were already aware of it since it was being investigated,” the unnamed administrator is quoted as saying to an inspector.

News that nursing home workers were cited as being unaware they had to report abuse shocked Virginia Long-Term Care Ombudsman Joani Latimer, a private agent contracted by the state as a nursing home patient advocate. “That is truly appalling,” Latimer said. “It’s not a new requirement … it’s been in place for quite a while.”

Most of the 140-page inspection report focuses on health care, and claims that:
* Not all patients are receiving prescribed medications;
* Facility doctors have failed to examine all patients on a regularly scheduled basis;
* Not all representatives have been notified when a patient faces a new health problem.

Inspectors wrote that they interviewed only members of a single night and day shift about the state’s mandated reporting law. It requires police, doctors, nurses and other medical staff to report to supervisors and regulatory agencies any suspected case of elder abuse.

Mandatory reporters who fail to make a report can be fined as much as $500 for the first failure and $1,000 for following failures.

According to the October report:
* Two of the 35 staff interviewed did not state that they would report abuse to their supervisor and follow the facility’s chain of command.
* Twenty-one of the 35 staff members interviewed were not aware they were required to report the allegation to the appropriate state agency.
* Two of 35 staff members interviewed were unable to answer what agency they would report suspected abuse to.
* Twenty-three of the 35 staff interviewed were unable to correctly identify themselves as a mandated reporter of abuse or could not define the term.

NHC spokesman Gerald Coggin, e-mailing the Bristol Herald Courier from the company’s headquarters in Murfreesboro, Tenn., wrote that it is nursing home policy to notify families, physicians and the appropriate authorities when abuse is suspected.

Inspectors arrived at NHC little more than a month after accusations surfaced that a former nursing aide there sexually assaulted male and female patients for years.

On Jan. 27, former nursing aide James Wright will face trial on four charges of aggravated sexual battery, which police allege happened to four NHC patients between 2000 and 2007.

Once the police charges surfaced, former NHC workers told the Herald Courier that supervisors either ignored or threw away written reports of the abuse. The former workers also said they were afraid they would lose their jobs if they skipped the home’s chain of command and called state regulatory agencies.

The sexual abuse claim that the administrator reportedly failed to pass on might be connected to the Wright investigation, conducted jointly by Virginia’s Attorney General’s office and Department of Health Professions. According to the inspection report, the home administrator, when asked about the sexual assault allegations surrounding a particular patient, noted that it was being investigated by the Department of Health Professions.


A resident’s chart is required to be complete, accurate, and legible.  The chart is a legal-medical document that is used to communicate among shifts, to document the resident’s condition and to prove the care actually provided.  Often times the charts are false, fraudulent, or simply misleading.  In The Pittsburgh Channel’s article, the facility falsely documented and forged a family member’s signature for reimbursement.

Team 4 investigative reporter Paul Van Osdol reported that 77-year-old Gene Cable checked into Scottdale Manor last November. Just six days later, he was dead.   Cable’s daughter, Rita Wilson, wanted to find out what happened, so she requested his medical records. When she got them, she was shocked. After Cable died, one of the first documents to catch the eye of his daughter was a Medicaid reimbursement form with what appears to be her signature.

"This was a document you were supposed to sign?" Van Osdol asked.

"Yes," Wilson said.

"You never did?" Van Osdol asked.

"No. I swear to God. I didn’t sign that," Wilson said.

Wilson said she also saw a nurse’s notes showing that her father supposedly went to the bathroom "when he was dead. And he was continent. That means he physically got up and went to the bathroom when he was dead."

Wilson complained to the administrator of Scottdale Manor Rehabilitation Center. She says administrator Brian Bazylak told her they took disciplinary action against the employee who allegedly forged her name and the employee who entered the inaccurate nursing notes.  Did they report them to the Board of Nursing?  Did they even fire them?  Did they audit all the other charts?

Attorney Peter Giglione, who has sued numerous nursing homes, says he is not surprised by what happened to Wilson. "We’ve had a couple cases tried here in Allegheny County where we’ve had staff members charting on our client after they’re dead," Giglione said.

Argus Leader had an interesting article written by Anna Bahney about a new invention that may help wheel chair bound residents.   Greg Johnson designed the wheel-chair to help his parents. Glenice Johnson spends her day in a wheelchair that her son developed, and Greg has turned over the wheelchair to a group of South Dakotans who work to find others who could benefit the way his mom has.

The chair, called the Dignity200, is the first wheelchair on the market that allows what the makers call "self-toileting."  The user pushes a lever that drops a center panel from the seat. The person backs the chair over the commode, readjusts clothing and urinates or allows for a bowel movement as if sitting on a toilet seat. Once clean, and after adjusting clothing, the user moves the chair away from the commode and the panel is returned to place.

"If I’m here by myself, I can take care of what I need to," Glenice said. "Mentally and emotionally, it is a tremendous plus. It makes all the difference in me being at home."

The adjustable, custom-built chair, available at Kreisers medical supply store in Sioux Falls and a growing number of similar stores, costs $2,950.   It is an expensive chair, Greg admits. But chair effectively pays for itself every three weeks, considering that a month’s stay in a long-term care facility can run at least $5,000.

But the greatest benefit might be a wheelchair-bound person staying home as long as possible.

Greg said he was able to figure out how to remove the understructure from beneath the wheelchair but couldn’t work out the drop-down panel.  He called up a rancher friend with a background in engineering to pick his brain.   Together, they began to work on prototypes. The hardest part, Greg said, was "making sure the seat cushion would be of a quality that allows her to stay in the seat all day. If that didn’t work, it wouldn’t be possible."

The Dignity200 now is approved by the Federal Drug Administration and is in testing for applications outside the home. According to the Centers for Disease Control and Prevention, health care workers who routinely lift and move patients have a higher risk of injuries than workers in most other occupations, and the number of those injuries are increasing.

In September, the chair became part of a risk prevention study overseen by the University of South Dakota medical school in partnership with the Good Samaritan Society.

"The lifting and transferring from chair to commode and so forth for residents whose conditions tend to be frail, that’s a significant issue and a significant source of injury to residents and staff," said Bill Kubat, vice president for resident community and quality service at the Good Samaritan Society.

A trial of the chairs at a Good Samaritan facility helped the chair get where it is now. Stories emerged, including staff who felt the chair made their work safer and a woman who had not used the bathroom on her own for four years and cried when the chair had to be returned at the end of the trial.

But the longest test case has been Greg’s mom, who has been in the chair for two years.

"For my mom, she can feel like she’s on her own a little more again," Greg said. "And my dad doesn’t have to be home. He’s got a lot more freedom and he’s doing a lot less lifting. It has changed their life." out of Texas had an article about a resident who was evicted and abandoned by his nursing home and left outdoors for hours. Bonifacio Rodriguez was left sitting on his front porch  when a neighbor discovered him.  The neighbor says a nursing home van dropped him off at his ex-wife’s house, but there was nobody home at the time. Fortunately, she notified the police and tracked down his family. His daughter was shocked.

Jennifer Leon says, "My dad got three strokes, he always walks with holding his hand. He doesn’t have that much balance. He could have fallen. If he’d walked he could have fallen. What would have happened?"  Rodriguez’s daughter says she’s filing a complaint with the state.

An administrator at the Village Care Center, where Rodriguez was a resident says, “The nursing home puts medical and physical safety as their top concern."   Yeah, right.

There was another article in out of Florida about a ManorCare nursing home trying to evict a resident who suffered a stroke.   According to witnesses ManorCare did exactly what it said it was going to do and loaded up Thai Hodges and drove her to the Westgate Tabernacle homeless shelter at night.   Fortunately, the shelter refused to allow the nursing home to dump her there.

Her daughter, 27-year-old Alexis Hodges, just got out of the Navy and was living in Virginia. Out of the blue she says she received a call from the Boynton Beach Nursing Home where her mother is staying and the facility said she had to go immediately.

"They said very heartlessly that it wasn’t their problem," Hodges said. "They said she wasn’t staying there another night…that was going to be it."   Hodges said her mother Thai is only 55 years old and, up until July, had been a surgical coordinator at a local hospital. But she suffered a stroke and has since been paralyzed.

"I begged and pleaded with them to give me a few days to find some place for her," Hodges said.

"I’m concerned now with her safety and her care and how its going to be," she said.

What’s worse is Westgate Tabernacle said this kind of abandonment is not uncommon- and is only getting worse. "Hospital dumps is what we call them," Negley said "I’ve seen people wheeled in here in a wheelchair, placed on a chair and then they take the wheelchair away."

Hodges said the hospital that treated her mother- Bethesda Memorial-originally sent her to ManorCare.

ManorCare was given a two out of a five star rating from the Center for Medicare and Medicaid.

ManorCare’s Delray Beach facility received only a one star.



As a follow up to yesterday’s entry about Georgia’s ridiculous and dangerous idea to house mentally ill prisoners and sexual offenders in nursing homes, I saw this tragic article on the Chicago Tribune’s site.

The article discloses a newly obtained government report and interviews show that a registered sexual offender allegedly groped a mentally impaired woman at the facility last month.   The Asta Care Center of Toluca in central Illinois failed to investigate the incident, implement an appropriate care plan for the sexual predator, Frank Aoskad, or properly monitor him to protect others.  Aoskad is alleged to have molested female residents in two prior incidents at the Asta Toluca home and a sister facility in Bloomington, according to state investigators.

Facility attorney Michael Siegel acknowledged to the Tribune that administrators erred in not interviewing Aoskad or the female about the alleged sexual abuse, as required. A Tribune article Friday chronicled allegations of sexual abuse against Aoskad, 80, as part of a wider examination of Illinois nursing homes’ failures to notify local law enforcement that they housed convicted sex offenders, as required by law, or to implement plans to isolate, monitor and treat the offenders inside the facilities.

Aoskad was moved back to Toluca this summer and given a state assessment calling him a "high risk" of danger to others.  The report, dated Oct. 26, says that a mentally disabled woman told her sister that Aoskad groped her. When later interviewed by state investigators, Aoskad denied touching the woman. posted an article about a proposal in Georgia to house sex offenders, violent offenders, those being electronically monitored and those with medical and mental health needs in nursing homes.   The state DOC is working with the state Board of Pardons and Paroles to recruit nursing homes, assisted-living facilities and other organizations interested in housing offenders upon release from prison.  Why would they be interested in bringing these dangerous people into the homes of our parents and grandparents?  The only reason is greed and reckless indifference to the safety of their other residents.

The statewide briefings are designed to serve as an "educational forum" for potential housing service providers, according to a Georgia Department of Corrections news release.  Briefings will be held across the state through February 2010. For more information about the meetings, contact LaTrese Schofield, residential coordinator for the state DOC, at or (404) 463-2947.

Please contact Ms. Schofield and tell her this is a bad idea.


San Jose Mercury News had an article about a Stockton nursing home facing California’s stiffest penalty after state investigators found the facility did not adequately protect a 92-year-old resident from a fatal fall.   The 120-bed Valley Gardens Health Care and Rehabilitation Center received a "AA" citation and a $90,000 fine for the 2007 death of retired Stockton businessman Robert Doscher.

A California Department of Public Health report found staff at Valley Gardens failed to check on Doscher as often as his chart recommended.  The state said Doscher’s death certificate listed his cause of death as accidental from falling down on his head in the bathroom. had additional information in an article.  Valley Gardens failed to ensure that the 92-year-old Doscher was adequately supervised and, as a result, he fell and later died, according to Dr. Mark Horton, director of the California Department of Public Health.  By its own assessment, Valley Gardens knew that Doscher was a serious risk to himself but it failed to act properly in protecting him from falling, according to the state’s recently concluded investigation.

Doscher was admitted to Valley Gardens on May 18, 2007, from an acute-care hospital. He required the use of a walker when he was admitted, and it was initially planned that he could be discharged to a board-and-care facility when his condition stabilized. He was assessed by Valley Gardens nursing staff as a "high risk for falls" and his chart indicated that he should be checked every one to two hours. Also, he was to be told not to get up without assistance; a motion-monitor alarm was to be used to alert staff to any unsafe activity; and he should have been placed in front of a nursing station for closer observation.

Three days after he was admitted, he was found on the floor, where he hit his head, apparently after falling while trying to get back into bed by himself, according to the state’s report. As of June 4, the report notes that "there was no documented evidence the resident was checked on every two hours" and he still was not located in front of a nursing station, as required by his assessment.

On June 12, two days before he died, he was again discovered on the floor, apparently after a fall. The report notes that "resident A rapidly developed a change in condition manifested by agitation and then a decrease in his level of consciousness." The next day, he was taken to an acute-care hospital in a comatose state, and within 24 hours he was dead.

Doscher’s death certificate, according to the state, listed his cause of death as "accidental from falling down on his head in the bathroom," resulting in an acute subdural hematoma from blunt force trauma.

Valley Gardens is a for-profit skilled nursing facility owned by Kindred Healthcare Inc. of Louisville, Ky. Kindred, with revenue of more than $4 billion as of June 30, operates 222 skilled-nursing facilities and more than 650 health care programs in 41 states, according to its Web site.

Its Stockton facility has a two-star "below average" rating – out of five stars – on Medicare’s Nursing Home Compare Web site, which looks at health inspections, nurse staffing and quality measures and then assigns ratings based on nationwide standards.



Attached is an opinion from Erie County, Pa.  The plaintiffs were represented by Christina Nacopoulos, Esq. She did a great job for her clients.  The Court rejected Defendants’ efforts to remove negligence per se, corporate and punitive claims.   The Court denied arbitration and  refused to submit the matter to arbitration ruling that the decedent’s family was not a party to any arbitration agreement and thus would not be bound by it.   The Court also denied Defendants’ outrageous request for sanctions.  Defendants were attempting to sanction the family for trying to assert their consitutional right to a jury trial by challenging the manadatory arbitration clause hidden in the admissions contract.