Vermont’s News & Record reported that LaTonya Rena Smith is accused of abusing a disabled woman living at a long term care home in Burlington. Smith is charged with one count of felonious patient abuse, according to an Alamance County Sheriff’s Office news release.

Deputies were called to D&M Family Care Home for a report of a 61-year-old disabled woman living at the nursing home who had been assaulted. Smith was arrested Friday by Alamance County Sheriff’s Office SVU deputies at the nursing home, according the release. During a search of the home, the N.C. Department of Health and Human Services served a notice of summary suspension of the adult care home license at the home.

The Alamance County Department of Social Services also removed the remaining residents from the home and placed them in other facilities, according to the release.

CBS News had an article based on the New York Times article and research from Hunter College that discovered that some state law allows some nursing homes to gain guardianship — and financial control — of vulnerable adults who reside in their facilities. Guardianship transfers a person’s legal rights to make some or all decisions to someone appointed by the court — usually a lawyer paid with the ward’s money. It is aimed at protecting people unable to manage their affairs because of incapacity, and who lack effective help without court action. Legally, it can supplant a power of attorney and a health care proxy.

It’s not an outcome that many people are aware of, according to a report from The New York Times and researchers at Hunter College. In a study of 700 guardianship cases filed in Manhattan over 10 years, the study found that more than 12 percent were for nursing homes seeking guardianship of patients. In some cases, the motive was apparently to gain control of the patient’s assets to pay bills.  

The tactic is a “strategic move to intimidate,” and that nursing homes pursue guardianship “just to bring in money.”   Lawyers and other experts versed in the guardianship process agree that nursing homes primarily use such petitions as a means of bill collection — a purpose never intended by the Legislature when it enacted the guardianship statute in 1993.  At least one judge has ruled that the tactic by nursing homes is an abuse of the law, but the petitions, even if they are ultimately unsuccessful, force families into costly legal ordeals.  Alexander W. Hunter Jr., a longtime State Supreme Court justice in the Bronx and Manhattan, ordered the nursing homes to bear the legal costs, ruling they had brought the petitions solely for the purpose of being paid and stating that this was not the Legislature’s intent when it enacted the statute, known as Article 81 of the Mental Hygiene Law.

Last year Justice Hunter did appoint a guardian in response to a petition by Hebrew Home for the Aged at Riverdale, but in his scathing 11-page decision, he directed the guardian to investigate and to consider referring the case for criminal prosecution of financial exploitation.  “It would be an understatement to declare that this court is outraged by the behavior exhibited by the interested parties — parties who were supposed to protect the person, but who have all unabashedly demonstrated through their actions in connection with the person that they are only interested in getting paid,” he wrote.

 A lawyer for nursing homes told the publication that guardianship “is a legitimate means to get the nursing home paid.”  These stressful situations are the result of a guardianship statute enacted in 1993, which allows a court to appoint a guardian for people in certain circumstances, such as if the person is incapacitated and unable to manage his or her own financial affairs. The statute, called Article 81, allows the facility where such a person is residing to seek guardianship.

“While Article 81 guardianships are well-intentioned, the guardianship system is plagued by long delays and has little oversight, leaving a vulnerable population of older adults at further risk,” according to the Brookdale Center for Healthy Aging at Hunter College. “In New York State, there is no consistent or reliable research data on guardianship proceedings or on the number of cases.”

The fact is that guardianship regulations vary from state to state, with a 2007 study from the University of Kentucky finding 44 states had specific statutory provisions on public guardianship, while another seven states had no codes. Hunter College’s analysis of guardianship petitions in Manhattan found that most of the requests came from Adult Protective Services, at 40 percent. Friends and family members filed about 25 percent of guardianship petitions, while hospitals and nursing homes together represented almost 29 percent.

 

Julie Ellis is a great writer who wrote the following article.

Hospital administrators are busy people. Their responsibilities for running an organization as large and as complex as a medical facility include, but are not limited to, the following:

  1. Establishing and managing the budget for all operational departments of the hospital
  2. Ensure compliance with federal, state and licensing laws and regulations
  3. Determine appropriate staffing of professional and non-professional personnel to include physicians, specialists, nurses, para-professional assistants, repair/maintenance departments, food service and custodial personnel, etc.
  4. Public Relations and Fund Raising
  5. Maintenance of the physical facility, as well as expansion and modernization efforts
  6. Repair, maintenance, and purchase of equipment

Because of the nature of its business, a hospital is subject to regular and comprehensive inspections and monitoring. Two primary organizations come into play in these evaluations – the Joint Commission, which is the licensing organization for all health-related institutions, and the Centers for Medicare and Medicaid Services. These groups establish minimum standards and, through a collaborative evaluative process, establish goals and benchmarks for continued improvement of hospital facilities. As plans are implemented to work toward these goals, the wise administrator involves individuals from all levels of all departments. Because of the critical nature of their positions, nursing staff members have a significant role to play in any quality improvement efforts.

The Role of the Nurse

Consider for a moment the specific responsibilities of the normal floor nurse:

  1. Responsible for the treatment and care of all patients on his/her floor
  2. Responsible for the supervision and performance of all paraprofessional staff on duty at the same time
  3. The task of making important and often critical emergency decisions in times of patient crisis
  4. Responsibility for all medication management and disbursement

The nurse is clearly the “front-line” professional with the most contact and interaction with patients. While doctors have their daily rounds and the responsibility for determining care plans for their patients, it is the floor nurse who must implement those plans precisely as established.

It is also the nurse who has the opportunity, on a daily basis, to observe the overall operation and efficiency of the delivery of medical care. He/she has a view not witnessed by doctors and administrators. So, when improvement plans must be developed, it is the nurse who can point out areas of strength and weakness and, in many cases, propose appropriate and cost-effective solutions to problems of quality care.

Nurses should be represented on all review committees within a hospital organization. Such representation allows these critical employees the opportunity to:

  1. Understand the parameters (e.g. budgets, regulations, etc.) within which the administration must operate.
  2. To present problems and issues of which administrators may not be aware.
  3. To propose continuing professional education thrusts based upon perceived and observed needs.
  4. Most important, nurses can present potential solutions and evaluate the viability of solutions being considered by administrators.
  5. As well, nurses can provide essential feedback in the evaluation of changes that have been implemented that impact both floor personnel and patients. If staffing changes, for example, have left some floors and/or departments under-staffed, it is the nurse who is best qualified to comment with detail.

It should be noted, as a final comment, that nursing staff from all three shifts must participate in the endeavors to improve hospital quality. It is difficult for any nurse to comment on the needs and issues faced by her counterpart who works different hours.

Author’s bio: Julie Ellis believes that, only through experiential knowledge does one become an engaging and creative writer. Her degree in Journalism and a host of real-world study and experience has made her a permanent and popular blogger for PremierEssay.net.

WHNT reported that an LPN at Brookshire Nursing Home in Huntsville is accused of stealing patients’ prescribed medications and selling them.  Jilandra W. Lindley was arrested and charged with unlawful possession of a controlled substance and theft of property 2nd.  A tip from a concerned citizen lead to agents searching Lindley’s apartment for narcotics.  In her apartment, agents found numerous prescribed medications belonging to patients from the nursing home where Lindley worked.  Lindley was stealing patients prescribed medications, bringing them back to her residence in Hartselle, and selling them to various individuals in Morgan County.

The Madison-Morgan STAC Unit stopped Lindley as she left Brookshire Nursing home for a traffic violation. Sheriff Franklin said the officers discovered 20 hydrocodone pills, several vials of insulin, and Clonazepam in her possession.  Lindley is also suspected in theft of some money from a patient at Brookshire Nursing Home.  She has felony charges pending in Huntsville related to that theft, Franklin said.

 

The Wall St. Journal had an article on an interesting proposal by Senator Warren. Seeking to fund new scientific research, U.S. Sen. Elizabeth Warren (D-Ma.) plans to introduce a bill that would require drug makers that break the law to send some of their profits to the U.S. National Institutes of Health.  Drug makers that reach settlements with the federal government for paying kickbacks to doctors, defrauding Medicare or Medicaid or illegally marketing medicines would have to pay 1% of their annual profits for each blockbuster medicine that can be traced to public sector research.

Warren argues that if her Medical Innovation Act had been in place over the past five years, the NIH would have had an extra $6 billion annually to fund research grants, which she claimed would have represented a 20% increase in NIH funding. To capture research funding, she wants to create the equivalent of a pharmaceutical “swear jar.”

The pharmaceutical industry has benefited from the largesse of publicly funded research, which has often allowed drug makers to profit from basic science that sometimes yielded big-selling medicines. Yet most every large drug maker – and some smaller ones – has reached settlements with the feds in recent years and paid fines, but have otherwise not been penalized.

“We should make it easier for the biggest drug companies to help develop the next generation of cures – and harder for them to profit from breaking the law and defrauding taxpayers. Only the biggest and most successful pharmaceutical companies would be required to reinvest in NIH,” she said. “No small or medium-sized innovator would ever pay…This isn’t a tax. It is simply a condition of settling to avoid a trial in a major case of wrongdoing. If a company never breaks the law, it will never pay the fee.”

Patrick Burns of Taxpayers Against Fraud, a non-profit that advocates against stiffer penalties against drug makers, says the NIH could benefit from her bill, because the fines currently paid by drug makers go to the U.S. Treasury, instead of specific earmarked destinations.

“Senator Warren thinks pharma fraudsters should pay more she’s right about that,” he says. “The current system of penalties is a perversion. If you are a big Fortune 500 company, no one loses their job, no one goes to jail and no one pays a personal fine… If we can change that equation, we may be able to start to put the era of big fraud behind us. Bigger fines alone are a good idea, but it’s not a game changer.”

 

American Banker had a great article by Jeff Sovern on mandatory arbitration clauses hidden in consumer contracts.  Jeff Sovern is a professor of law at St. John’s University and a coordinator of the Consumer Law and Policy Blog.  See below for full article.

In a recent op-ed, I argued that the Consumer Financial Protection Bureau should ban arbitration clauses in boilerplate consumer contracts because people generally don’t understand them. Financial industry lawyers Alan Kaplinsky, Mark Levin, and Daniel McKenna responded with an op-ed that took issue with the article, as well as the underlying study on which it was based. Unfortunately, their arguments largely miss the mark.

Let me first clear away some underbrush. The industry lawyers charge that our survey “did not interview consumers who actually had participated in arbitration.” In fact, 57 of the 647 people in our survey who answered a question about their experience with arbitration claimed to have participated in the past. Their answers to the eight questions that had right and wrong answers were statistically indistinguishable from the answers given by respondents who said they had no such experience. In other words, respondents who had been involved with arbitration did not understand arbitration clauses any better than those who had not.

The industry lawyers also suggest that it would be helpful to know if consumers understand arbitration clauses better or worse than other contract clauses. While we didn’t examine this issue, in fact consumers may well have a better grasp of non-arbitration terms. Credit card arbitration clauses, on average, require more than two years of college to understand, according to the CFPB. Other credit card contract clauses typically require an eleventh-grade education or less.

But even if we assume that consumers are just as confused by other terms as by arbitration clauses, and that consumers should be bound by other terms they cannot comprehend, arbitration clauses still call for different treatment. That is because arbitration clauses take away constitutional rights that our country’s founders fought for: the right to a jury trial, which is referred to in the Declaration of Independence, and the right to a day in court. Americans should not lose fundamental rights without being aware that they are doing so.

Let me now turn to the industry lawyers’ main argument. They suggest it’s fine if consumers sign away constitutional rights without realizing they are doing so: after all, they say, consumers fare better under arbitration than in litigation. They base this view on a report issued by the Searle Civil Justice Institute. Plenty of others disagree and argue that arbitration is inferior to litigation—including Georgetown professor Adam Levitin, writing in these pages.

The question of whether arbitration or litigation is better for consumers is an important one. But it is one that our study did not attempt to address. That’s because before you can figure out which option is better, you have to determine whether consumers are able to make up their own minds about giving up their constitutional rights. As my co-author, Montana Law School dean-designate Paul Kirgis, has explained:

Citizens cannot be forced into alternative processes simply because someone has made a determination that they would in fact be better served by the alternatives. It is certainly true that citizens can choose to give up their adjudicative rights, but those choices have legitimacy only if they are knowing and voluntary. Our research suggests that consent to arbitration is seldom knowing and voluntary.

The framers of the constitution decided, in their wisdom, that courts should settle disputes. That foundational document makes courts legitimate forums for the resolution of legal arguments.

Our study found that many respondents believed they retained the constitutional right to have disputes decided by a court, even when an arbitration clause had taken it away. In other words, we found that consumers did not consciously agree to surrender their rights.

Therefore the arbitration emperor lacks the clothing of legitimacy. And it does not gain legitimacy because some think that consumers are better off under arbitration.

WNEP reported that Joshua Wegielewski was in court to face charges that he assaulted a resident at the Gardens of Green Ridge nursing home on October 25, 2014.  According to court papers, a certified nursing assistant assaulted a resident at the nursing home. Court papers say Wegielewski and a coworker held a 76-year-old woman’s door shut so she could not leave her room. Court papers also indicate the victim was dragged by her arms and wrists leaving multiple bruises.  The resident suffers from dementia and the district attorney’s office wants the former nursing assistant to be held accountable for his actions.

An investigator with the Agency on Aging told the judge the victim had multiple bruises on her wrist, arm and shoulder. Court papers say cameras inside the nursing home show exactly what happened.  “Not only did he restrain her in her room, but the way he grabbed her and forced her and pushed her into the room and caused her bruising was uncalled for,” said assistant district attorney Susan Price.

The video surveillance also allegedly shows the victims swinging her arms at Wegielewski.

 

Max Gottlieb was kind enough to offer to write a guest article.  We thank him for the below article.

Many seniors in the United States will have to find ways to pay for long term care that they need, either in an institutionalized setting such as an assisted living home, or at home through a home health or home care service. Unfortunately, the cost of these services is generally high.

For many, the most frustrating aspect is not the loss of independence, but that fact that they worked hard to leave behind a financially beneficial legacy for their children. Indeed, the cost of long-term care, which typically costs between $2,000 and $5,000 per month for full time care, can quickly deplete most middle class Americans’ savings. Employing good strategies to maximize care and minimize expense can help alleviate the strain of this scenario.

The first thing that you should do is consider what kind of support system you would have if you had a need for long-term care. Do your children live close enough and are they able to take care of you? Assume that you will need the maximum amount of care as planning for the worst is often a good way to be prepared. Figuring out how much your children, other relatives, and friends can help you will allow you to understand a little bit more clearly what your needs will be in the future. People with very strong support systems get by a little bit longer without paid help. Additionally, in situations where there is not constant supervision, a medical alert system might be a good idea. Medical alerts allow seniors to stay at home longer because the effects of falling without quick assistance can negatively alter anyone’s health. It is important to be realistic about what your situation is and how it will affect your needs going forward.

Long-term care insurance is also a good option for those who are able to make the investment. Policies that are purchased before the diagnosis of conditions such as Alzheimer’s disease are significantly cheaper in cost, so it pays to think ahead. It is important to know that you must continue to pay the premium or lose the investment in the plan. Budgeting in the premium monthly price prior to purchasing is a good idea. Never the less, this insurance will pay for skilled nursing care. Without long term care insurance, skilled nursing is funded on a limited basis by Medicare, with the rest of the cost coming directly out of your pocket. Sadly, many seniors choose to compromise their health and move to a lower and less costly care situation because of the cost of skilled nursing. Skilled care can cost up to $5000.00/month, varying from place to place throughout the United States.

For those who have high medical need, are already sick, and are denied long term care insurance, residential care homes provide a good alternative to paying for skilled nursing or paying for assisted living. For those who need the highest level of care and have a terminal diagnosis, hospice services can also be used to provide supplemental medical need. Home Healthcare may be an option for those who do not qualify for hospice. Both home health and hospice are paid for by Medicare, and the care lasts for a longer duration than skilled nursing.

There are circumstances where protecting your nest egg will be more difficult. For those who have Alzheimer’s disease, but very good physical health, long term care services will likely be a part of your life for quite some time. Someone who receives five to ten years of services will likely spend through most of their wealth unless they have been particularly frugal throughout life with immense savings. It’s important to get together your financial information to help you understand how long you can expect to be under the care of a long-term provider. Use this information to help you make a realistic decision.

Protecting your nest egg can be difficult, but by looking for creative and affordable solutions, you can actually save a lot of money. One thing to remember about long term care providers is that they function primarily off of referrals. They generally are not built to compete on price with anyone else, so you may find different price points for the same services from different providers. Many physicians, social workers, nurses, and other professionals who make referrals don’t actually know the different prices of care, so this is something that you might have to research. The time spent researching, however, is well worth it as the benefits can be great. Don’t be afraid to say that you want to pay less–sometimes you will able to.

Max Gottlieb is the content editor of Senior Planning and ALTCS, a long-term care-planning agency in Phoenix, Arizona that offers free assistance to seniors and their families.