KSAT reported that Marla Bean was fired from her job at Esplanade Gardens, the Converse nursing home where she allegedly beat a resident who suffers from Alzheimer’s disease, according to one of the facility’s administrators.  An arrest affidavit stated that the daughter of the 77-year-old victim installed a camera in her mother’s room after noticing some unexplained injuries on her.  The camera recorded Bean as she slapped the older woman in her face and hit her on her body, then threw her down on a bed.  Detectives believe the assault continued in the victim’s bathroom because “the door was closed for 22 seconds, but when the door was opened, (the victim) was on the ground”.

Had it not been for the video, Rheiner said, detectives may not have been able to build a case.  An out-of-state relative of the elderly woman who was contacted by phone said she was sad and disgusted by what happened. She said she fears that other residents of the home also may have been victimized by Bean.

 

WTAE Action News Investigates has found another example of the nursing home industry telling the nursing home regulators how to do their job – and succeeding.  Last year the Pennsylvania Health Department who are required by law to inspect, supervise, and investigate nursing homes to promote the health and safety of the nursing home residents posted a ridiculous disclaimer on its website that says the reports are not intended to be used in lawsuits against the nursing homes.

Action News Investigates has learned the nursing home industry not only lobbied for the disclaimer — but also helped write it.  The investigation originated when a neglected resident’s lawyer wanted to use relevant  inspection reports that showed the nursing home was cited for inadequate staffing and failure to prevent some residents from dehydration.  Notice of problems in the facility are admissible to prove that the facility was aware of the problems and failed to remedy the situation.  Records show the Pennsylvania Health Care Association spent $461,174 on lobbying expenses last year.

The nursing home refused to produce the inspection reports citing a disclaimer on the Health Department website saying inspection reports are “not intended to be evidence of compliance with any legal standard of care in third-party litigation.”  The department created the disclaimer only after the nursing home industry’s chief lobbyist — Stuart Shapiro of the Pennsylvania Health Care Association — sent an incriminating email to then-state health secretary Michael Wolf.  Emails obtained by Action News Investigates reveal that during the next year, nursing home industry lawyers and Health Department officials worked together to write the disclaimer.  No patient advocacy groups such as AARP or other experts were asked about the disclaimer–only the nursing home industry and their attorneys.

An expert in government ethics said the emails reveal an overly cozy relationship between the nursing home lobby and the state’s nursing home regulators who are supposed to be protecting the public.  “It almost looks like the industry captures the agency that’s supposed to be monitoring them,” said Barry Kauffman, director of Common Cause Pennsylvania.

 

 

The New England Journal of Medicine published an article by Ms. Burwell, the U.S. Secretary of Health and Human Services.  Burwell wrote about the opportunity to shape the way care is delivered and improve the quality of care system wide, while helping to reduce the growth of health care costs.  The Department of Health and Human Services (HHS) now intends to focus its energies on augmenting reform in three important and interdependent ways: using incentives to motivate higher-value care, by increasingly tying payment to value through alternative payment models; changing the way care is delivered through greater teamwork and integration, more effective coordination of providers across settings, and greater attention by providers to population health; and harnessing the power of information to improve care for patients.

DHHS’ goal is to have 85% of all Medicare fee-for-service payments tied to quality or value by 2016, and 90% by 2018. Another target is to have 30% of Medicare payments tied to quality or value through alternative payment models by the end of 2016, and 50% of payments by the end of 2018. Alternative payment models include accountable care organizations (ACOs) and bundled-payment arrangements under which health care providers are accountable for the quality and cost of the care they deliver to patients. This is the first time in the history of the program that explicit goals for alternative payment models and value-based payments have been set for Medicare.

To drive progress, DHHS is focusing on three strategies. The first is incentives: a major thrust of our efforts is to create an environment in which hospitals, physicians, and other providers are rewarded for delivering high-quality health care and have the resources and flexibility they need to do so.

Second, improving the way care is delivered is central to DHHS’ reform efforts. DHHS has put in place policies to encourage greater integration within practice sites, greater coordination among providers, and greater attention to population health.  There is now a national program to reduce hospital readmissions within 30 days after discharge, which encourages hospitals to improve transitional care and coordinate more effectively with ambulatory care providers. Through the Transforming Clinical Practice Initiative, DHHS will invest up to $800 million in providing hands-on support to 150,000 physicians and other clinicians for developing the skills and tools needed to improve care delivery and transition to alternative payment models. New Medicaid health homes, patient-centered medical homes, and efforts to reorganize care for people eligible for both Medicare and Medicaid are all designed to foster greater integration and coordination.

Third, we aim to accelerate the availability of information to guide decision making. The Obama administration has led a major initiative in health information technology (IT), focusing on the adoption of electronic health records (EHRs) and their meaningful use as a central avenue for transforming care. DHHS has made a commitment to enhancing transparency in the health care market. For example, the Medicare website enables consumers to compare data on the costs and charges for hundreds of inpatient, outpatient, and physician services. Information is available on the quality of hospitals, physicians, nursing homes, and other providers, enabling consumers to make better-informed choices when selecting providers and health plans.

Growth of health care spending is at historic lows: Medicare spending per beneficiary increased by approximately 2% per year from 2010 to 2014 — a rate far below both historical averages and the growth rate of the gross domestic product.  We are dedicated to using incentives for higher-value care, fostering greater integration and coordination of care and attention to population health, and providing access to information that can enable clinicians and patients to make better-informed choices. We believe that, by working in partnership across the public and private sectors, we can accelerate these improvements and integrate them into the fabric of the U.S. health system.

A new bill in Oklahoma would create a review board to hold nursing homes accountable for deaths or serious injuries to residents.  “In Oklahoma, we rank almost dead last in the nation in caring for our seniors,” said Oklahoma Rep. Richard Morrisette.  “Whenever there’s a death or serious injury in one of these homes, this board will have the legal responsibility to investigate,” Rep. Morrisette said.  Morrisette and other advocates hope this legislation will prevent unnecessary deaths among the elderly, and protect taxpayer money from being wasted on poor care.  These investigations would look to see if the death resulted from abuse or negligence while in long-term care.

According to Families for Better Care, Oklahoma received an ‘F’ in overall nursing home care.   “Today, we believe 3,500 people are dying of abuse and neglect in Oklahoma nursing homes alone,”  said Wes Bledsoe, founder of  ‘A Perfect Cause.’

 

Inside Arm appears to be a defense blog and podcast.  The blog had an article about why companies use arbitration agreements and force victims of negligence to forgo their constitutional right to a jury trial.

In “Is There a ‘Silver Bullet’….”, corporate lawyer John Rossman of Moss & Barnett in MN says, “What if there existed a single argument that could be made in many consumer cases that would successfully remove the matter from Court and likely end the case in its entirety?”  (Emphasis added.)

“Surprisingly,’ he says, “such an argument exists … arbitration clauses requiring that certain consumer disputes be resolved through arbitration rather than Court proceedings.”

“A broad array of consumer contracts include arbitration clauses requiring that certain consumer disputes be resolved through arbitration rather than Court proceedings.  Recent United States Supreme Court precedent supports enforcement of such arbitration clauses.  Depending on the exact wording of the arbitration clause, motions to compel arbitration of FDCPA, TCPA, and other consumer litigation may succeed where other arguments fail.

Further, in a putative class action – such as a TCPA class action – if some of the purported class members are subject to an arbitration clause, this alone may be sufficient to defeat class certification.”

 

Reuters reported that people in nursing homes are more likely to be dehydrated than elderly people living in the community, new research suggests. People in nursing homes may be at a greater risk of dehydration, especially if they require assistance and may not drink enough fluids on their own.  The study, involving patients admitted to hospitals in the UK, found that dehydration was more common among those who came from nursing homes.  Patients from nursing homes were more than five times as likely to have high sodium levels as those who came from their own homes.  In serious cases, dehydration can lead to high levels of sodium in the blood, a condition called hypernatremia that can increase the risk of dying in the hospital.  And dehydrated patients from any setting were five times more likely to die in the hospital.

“We believe that when a hospital finds that more than a few people are admitted with a high sodium from an individual (nursing) home it should raise a warning flag,” Dr. Martin McKee of the London School of Hygiene and Tropical Medicine, the study’s senior author, told Reuters Health.

Studies have suggested that older people may avoid drinking because they fear no one will help them get to the bathroom in time, and also, some staffers may either fail to encourage them to drink or may actively withhold fluid to prevent them from wetting the bed.   Higher numbers of staff and better-trained and prepared staff can actually impact the incidence of dehydration very dramatically.

 

The People’s Pharmacy had an article on how certain medications may cause or aggravate dementia.  Researchers studied participants in the Adult Changes in Thought (ACT) study conducted in the Seattle area (JAMA Internal Medicine, online, Jan. 26, 2015). These were older people enrolled in an integrated health care delivery system called Group Health. Over 3,000 individuals were included in the research, and none had dementia when they entered the study starting in 1994.  Scientists tracked their drug use and cognitive function over the next two decades. The higher the dose of anticholinergic drugs and the longer such medications were taken, the greater the risk of dementia. In this study the most common anticholinergic drugs were antihistamines found in over-the-counter allergy drugs and nighttime pain relievers, antidepressants that are also prescribed for nerve pain and medications prescribed to treat incontinence or symptoms of overactive bladder. The authors conclude:

“Higher cumulative anticholinergic use is associated with an increased risk for dementia. Efforts to increase awareness among health care professionals and older adults about this potential medication-related risk are important to minimize anticholinergic use over time.”

Anticholinergics interfere with the ability of a crucial brain chemical called acetylcholine (Ach) to attach to nerve cells. ACh is essential for muscle contraction. Without adequate amounts of this neurotransmitter you could not breathe, blink your eyes or tie your shoelaces. Body movement can only happen when ACh triggers a muscular contraction.  Acetylcholine is also critical for proper brain function. Without ACh doing its job transmitting messages between brain cells, you would become forgetful and confused.

What most modern-day physicians have not learned, however, is that many other drugs also have anticholinergic activity. As mentioned in the ACT study, first-generation antihistamines were linked to dementia. We are talking about drugs like chlorpheniramine and diphenhydramine (DPH).  DPH is the primary ingredient in many allergy and hay fever meds including the popular brand name Benadryl. But DPH is also found in a huge number of nighttime pain relievers and sleeping pills. Look at the label of Advil PM, Aleve PM, Bayer PM, Excedrin PM, Nytol, Simply Sleep, Sominex, Tylenol PM or Unisom and you will likely find diphenhydramine as a key ingredient.

The researchers noted that an older class of antidepressants called “tricyclics” was also linked with dementia. Drugs such as amitriptyline or doxepin are not prescribed as much for depression as they once were. That’s because of newer antidepressants such as citalopram (Celexa), escitalopram (Lexapro), fluoxetine (Prozac) and sertraline (Zoloft). But some physicians prescribe amitriptyline for nerve pain and doxepin for insomnia. These drugs can produce classic anticholinergic side effects: dry mouth, constipation, blurred vision, rapid heart rate, difficult urination, confusion, cognitive impairment and drowsiness.

What concerns us far more than any individual anticholinergic medication is the combination of several drugs with anticholinergic activity. Physicians may not realize that the anti-anxiety agent alprazolam (Xanax) has anticholinergic activity. So does the ulcer drug cimetidine (Tagamet). The dizziness drug meclizine (Antivert, Bonine) also has this activity.

“The general view is that anticholinergic-induced cognitive impairment is reversible on discontinuation of medication therapy. However, several investigators have reported that anticholinergics may be associated with an increased risk for sustained cognitive deficits, such as mild cognitive impairment or dementia. One biologically plausible mechanism for these findings is that cumulative use of these agents results in pathologic changes in the brain similar to those observed with Alzheimer disease (AD).”

 

 

The Federal Lawyer magazine had a great article on the basics of arbitration.  Practitioners and the judiciary should not assume that all arbitration agreements are enforceable. Rather, they should carefully analyze arbitration agreements under the precepts summarized in this article to determine their enforceability.

Rather, arbitration agreements may still be found unenforceable under arbitration-neutral theories applicable to all contracts generally. Each arbitration agreement should be analyzed carefully in light of the particular facts at issue. Here are some recurring themes observed in court decisions throughout the nation dealing with challenges to the enforceability of arbitration agreements in the wake of Concepcion and Italian Colors.

Corporate defendants have sought to enforce end user arbitration agreements against consumers, even if the defendants were not parties to the end user agreement. Courts remain in large part resistant to such attempts absent a showing that the consumer claims rely on or are intertwined with the third-party contract containing the arbitration provision and that equitable estoppel compels enforcement of arbitration. See Murphy v. DirecTV Inc., 724 F.3d 1218 (9th Cir. 2013) (holding Best Buy could not “piggy-back” onto DirecTV’s arbitration clause); In re Carrier IQ, Inc. Consumer Privacy Litig., No. 12-md- 2330, 2014 U.S. Dist. LEXIS 42624 (N.D. Cal. Mar. 28, 2014) (mobile telephone manufacturer and tracking application developer could not enforce arbitration provisions in wireless provider contracts); Kramer v. Toyota Motor Corp., 705 F.3d 1122 (9th Cir. 2013) (automotive manufacturer could not enforce arbitration clauses between buyers and dealers); Galitski v. Samsung, No. 12-cv-4782, 2013 WL 6330645 (N.D. Tex. Dec. 5, 2013) (Samsung, a mobile telephone manufacturer, could not enforce arbitration contract between consumers and their mobile carriers); Rajagopalan v. NoteWorld, LLC, 718 F.3d 844 (9th Cir. 2013) (payment processor could not enforce arbitration agreement between debtor and debt settlement program); Laumann v. NHL, 989 F. Supp. 2d 329 (S.D.N.Y. 2013) (Comcast could compel arbitration against only its own subscribers’ disputers, not those of DirecTV customers); Jay Wolfe Used Cars of Blue Springs, LLC v. Jackson, 428 S.W.3d 683 (Mo. Ct. App. 2014) (defendant’s motion to compel arbitration denied when defendant was a separate legal entity, registered to do business in a different state, from the entity that was party to plaintiff’s contract; contractual rights and obligations could not be imputed to defendant); Allscripts Healthcare Solutions Inc. v. Pain Clinic of Northwest Fla. Inc., No. 3D13-716, 2014 WL 3930150 (Fla. Ct. App. Aug. 13, 2014) (defendant-software firm could not compel arbitration of plaintiff-doctors’ claims because their claims did not rely on or require reference to plaintiffs’ agreements with defendant’s subsidiary).

Numerous post-Concepcion cases also have dealt with contract formation issues related to a nonparty signing the subject arbitration agreement on behalf of a vulnerable plaintiff, commonly someone who is incapacitated, a dependent minor, or a decedent. Defendants in these cases often seek to enforce the agreement under theories of agency, equitable estoppel, or intended third-party benefit. Courts have demonstrated reluctance to grant defendants’ motions to compel arbitration absent a clear correlation between the arbitration clause and the signatories’ authority or intended benefit at the time of execution.  GGNSC Omaha Oak Grove, LLC v. Payich, 708 F.3d 1024 (8th Cir. 2013) (contract signed by son when admitting decedentmother to defendant-nursing home could not be enforced against decedent’s estate, as no valid contract was formed between decedent and defendant and son lacked authority to act on her behalf); SSC Montgomery Cedar Crest Operating Co., LLC v. Bolding, 130 So. 3d 1194 (Ala. 2013) (plaintiff-resident’s status as incompetent ruled out theory of apparent authority when daughter purported to be plaintiff’s legal representative and signed arbitration agreement with defendant); Walton v. Johnson, 66 A.3d 782 (Pa. Sup. Ct. 2013) (plaintiff-patient’s negligence claims for post-surgery treatment were not subject to arbitration agreement signed by plaintiff’s mother at time of admission to hospital, as mother was not plaintiff’s agent and plaintiff did not know or should have known mother signed agreement); Ping v. Beverly Enters., 376 S.W.3d 581 (Ky. 2012) (decedent’s child’s power of attorney limited to financial and health care decisions, thus long-term care facility could not compel arbitration under optional agreement with regard to estate’s wrongful death claims); State ex rel. AMFM, LLC v. King, 740 S.E.2d 66 (W. Va. 2013) (same); Barrow v. Dartmouth House Nursing Home Inc., 14 N.E.3d 318 (Mass. Ct. App. 2014) (same).

 

NBC San Diego had a great article on the use of video cameras in nursing homes.  Video cameras capture reality and from police officer body cams to nanny cams, they are being used more and more as a way to help provide accountability.  Joe Balbas is the co-owner of Vista Gardens, a residential facility for Alzheimer’s disease and dementia patients. He said elderly patients in nursing facilities should have the option of having security cameras in their room.

In California, families and a local San Diego nursing home want to protect loved ones by installing cameras in patient bedrooms, but they are facing a roadblock from the state.  Under California law, cameras can be used to monitor residents in common areas such as hallways or dining facilities which Vista Gardens uses. The facility also has surveillance cameras in resident rooms, but they sit unused because the state won’t give the green light.

“I believe our roadblock is DSS,” Balbas said. “Although they are supposedly going to be working with us, it’s been promises that eventually we will get to it. I know they are busy. We are all busy. This is a very important issue.”

One family member stated  “Cameras don’t lie. They really don’t. I think if you don’t violate the patient’s privacy, I would have loved a camera in there. It just gives you security that people are doing their job.

 

McKnight’s had an article on the effect of filing bankruptcy on the license of a facility.  A recent case held that Florida’s Agency for Health Care Administration can continue to try to revoke a nursing home’s operating license, despite the facility declaring bankruptcy, a federal bankruptcy court has ruled.  The U.S. Bankruptcy Court for the Middle District of Florida was evaluating the “automatic stay” provision that protects entities during bankruptcy. In this case, it meant on behalf of the Rehabilitation Center of St. Petersburg, which is operated by Bayou Shores SNF LLC. But since the state believes the residents are in immediate jeopardy, “there can be no question the attempt to shut it down is an effort by AHCA to protect what it believes is in the best interests of the patients’ safety and welfare,” the court wrote.  Without the ability to collect from Medicare and Medicaid, the latest decision makes it less likely the nursing home can successfully emerge from bankruptcy.

After that decision, a federal appeals court has ruled former officers and directors of a different nursing home are still liable for $2.25 million in compensatory damages.  Administrators at the Lemington Home for the Aged have been involved with litigation for close to a decade. After the bankrupt nursing home closed in 2005, unsecured creditors charged that the facility leaders had breached their fiduciary duty through grave mismanagement, as well as poor care allegedly connected to the deaths of two residents.

The U.S. Court of Appeals for the Third Circuit has ruled there was enough evidence that the officers and board members of the organization overseeing the Lemington Home for the Aged ignored their duty of care. However, the court said in its January 26 ruling that while there’s evidence to support the $1.75 million in punitive damages against two officers, it was insufficient to support $350,000 in punitive damages against each of five director defendants since they didn’t engage in “outrageous conduct”.