One of the most difficult obstacles to getting my clients’ justice is the use of forced arbitration in nursing home admission agreements that take away the victim’s access to the Court and their constitutional right to a jury trial.  Maybe things are about to change because the Forced Arbitration Injustice Repeal Act (H.R. 1423) just PASSED the U.S House of Representatives by a vote of 225-186.  This bill, first introduced in Congress in 2007, is landmark legislation which would restore the fundamental rights of workers and consumers to seek justice and accountability.

For the first time, the debate highlighted what the bill is really about: to help the people who are hurt when corporations break the law.  The other highlight is that for the first time ever, multiple anti-civil justice politicians openly admitted that in certain circumstances, having access to the public court system is essential (sexual assault, harassment, and military).  While of course access to the civil justice system shouldn’t be limited to these circumstances, the fact that even these tort reformers admitted this out loud, and were also willing to consider limits on forced arbitration in certain circumstances, means we are moving to a place where we can actually change the law to realize the restoration of rights.

Forbes reported on the New York Times story on Rosewood Care Centers, a bankrupt for-profit nursing home chain, plagued by mold, disrepair, and wrongful death lawsuits. The nursing home chain is accused of misusing a government loan program by diverting the money for another investment, ignoring quality issues, and allowing wrongful deaths to occur.

Readers’ comments on the Times story were specific and detailed. One former manager of a nursing home wrote that despite the alleged bad intentions of the nursing home owners featured in the story, many nursing homes in America will struggle even if they have good intentions. Several factors conspire to weaken the industry’s bottom line. The homes are mostly structured as for-profit enterprises, their workers are among the most poorly compensated in any industry, individual families can’t pay for adequate care, and the government has not budgeted enough money for Medicare and Medicaid nursing home care.

The federal agency charged with helping people in need of housing is clearly not working. It is unsettling while 10,000 aging boomers turn 65 every day, prompting a predictable surge in nation’s nursing-home population. Baby boomers, defined as the 77 million Americans born between 1946 and 1964, significantly outnumber the generations that came immediately before and after. Most of them will need custodial care at some point.

In 1995 the Government Accountability Office reported that oversight on quality of care and financial stability of nursing homes was scattered and inadequate among state and federal governments.

If you have been lucky enough to have accumulated wealth throughout your working life—and avoided setbacks like divorce, job loss, or health shocks—then you may have enough money to afford a home nurse or a nice assisted-living facility. As we age we will all likely need some sort of custodial care, and whoever takes care of us will be mentally and physically drained, whether they be family members or hospital staff. If the pay for certified nursing assistants, personal care workers, and home health workers is not improved, that drain could prove unsustainable for care workers.

As the Rosewood example shows, an increased role for government in long-term elder care is sorely needed. Not only is there not enough money to meet standards of care, add the requirement to make profits for the shareholders and the system is doomed. We might all be doomed if there is no adequate care for us as we age.

The Mountaineer reported on the horrific saga involving SavaSeniorCare in North Carolina.  In August 2017, Luis Gomez, a former certified nursing assistant at the Brian Center — now known as Haywood Nursing and Rehabilitation — was found guilty of several felonies, including forcible rape, by a Haywood County jury. The charges related to two victims, both of whom filed a separate civil suit in Haywood County Superior Court before filing in federal court last month.  The nursing home was owned and operated by SavaSeniorCare–a national billion dollar for-profit chain.  The Sava chain is managed by SavaSeniorCare Administrative Services LLC and SavaSeniorCare Consulting LLC.

According to the suits, which uses the term “Sava Senior Care — ALL” to refer to the defendants (including the parent company), the staff at the Brian Center was aware of the dangerous conditions its residents were subject to.  Gomez began working at the Brian Center in July 2015, and the suits allege that abuses were reported to management prior to Gomez being reported to law enforcement or even fired from the facility.  Perhaps most shocking is that the suit alleges that the defendants worked to cover up Gomez’ horrid deeds by silencing his victims. They further allege that had The Brian Center given the initial complaint adequate attention that he would have not been able to assault more helpless women.

“At the relevant times, on information and belief, Sava Senior Care — ALL were fully aware that the failure to provide sufficient numbers of competent nursing personnel to meet the basic needs of residents jeopardized the health and safety of such residents and would, in all reasonable likelihood, cause serious injury to residents, including [the plaintiff],” it continues.

The suits allege that the knowledge of sub-standard conditions was known by all even the management company, related entities, and the parent company but they only cared about profits and the bottom line.

“Sava Senior Care — ALL, on information and belief, entered into a continuing course of negligent conduct by creating, implementing, and enforcing dangerous operational budgets at the Haywood Sava Senior Care-Brian Center Facility that deprived residents, including [the plaintiff] of adequate staffing necessary to meet custodial needs,” the suit continues. “This course of conduct deprived residents, including [the plaintiff], of supplies and personnel necessary to meet her needs. Further, this course of conduct failed to ensure that qualified employees worked at the facility. This course of conduct allowed a sexual predator to be employed by and to work at the Haywood Sava Senior Care-Brian Center Facility and to cause severe harm to multiple residents, including [the plaintiff].”

“Upon information and belief, Sava Senior Care — ALL conducted a purported investigation of the complaint of Jane Doe; discounted and minimized the reports and complaints of Jane Doe; gathered and manipulated information to criticize and disparage Jane Doe; and promptly arranged to have Jane Doe involuntarily committed to another facility for psychiatric evaluation,” one suit reads. “On information and belief, the commitment of Jane Doe by Sava Senior Care — ALL rendered her unavailable for interview and evaluation at the facility by the appropriate authorities, including representatives from the Complaint Intake and Health Care Personnel Investigations Section of the North Carolina Department of Health and Human Services.”

 A hearing was held April 2 in the Senate Judiciary Committee. The Republican majority called for the hearing, representing an important step in demonstrating to the American public the ubiquity of forced arbitration clauses.

The victims who attended represent those who are discriminated against for taking leave of employment to serve in the U.S. Reserve Forces; sexually assaulted at work; small business owners trying to dispute charges with financial service corporations; or defrauded by for-profit student universities, among others.

Below, you’ll find a short compilation of remarks from Senators Graham (SC); Booker (NJ); Ernst (IA); Durbin (IL); and Klobuchar (MN); plus, remarks from Navy Reservist Kevin Ziober and Professor Myriam Gilles (Benjamin N. Cardozo School of Law).

The legislation to end forced arbitration, called the Forced Arbitration Injustice Repeal (FAIR) Act, has been introduced in each chamber of Congress. Currently, there are 177 House cosponsors and 35 Senate cosponsors.  Please use this link to email your member of Congress to support the FAIR Act. I encourage you to also watch and share the forced arbitration video, which is posted on the AAJ Facebook page, www.Facebook.com/JusticeDotOrg.

Massachusetts Attorney General Maura Healey announced settlements with seven nursing homes over systemic failures that led to five residents’ deaths and several injuries.  The failures identified by Healey’s office include allegations of staff ignoring serious injuries that led to two residents bleeding to death. They also include a fatal medication error, failure to treat residents with histories of substance abuse, and allowing a resident with a history of wandering to escape from a locked, supposedly secure unit.

Healey’s office said it weighed the evidence and determined civil enforcement was the best way to improve safety and quality in these nursing homes.  The settlements impose fines on the nursing homes ranging from $30,000 to $200,000. Five of them will be required to upgrade staff training and policies, conduct annual audits of their progress, and report that progress to the attorney general’s office for three years.

One company, Synergy Health Centers, has been banned from operating any taxpayer-funded nursing homes in Massachusetts for seven years.  Synergy is a troubled New Jersey company that started buying Massachusetts nursing homes in 2012 and quickly ran into problems with serious patient injuries as it bought 10 more facilities.

Candi Hitchcock, whose mother, Betsy Crane, died in one of the cases, said she is still grieving her mother’s horrific death. Crane, a resident at Beaumont Rehabilitation and Skilled Nursing Center, fell at least 19 times because staff failed to adequately intervene. She died after the 20th fall. “She was my best friend, and our family had to watch her bleed out from head trauma over 10 days and die an unnecessarily painful death,” Hitchcock said.

Hitchcock said she discovered her mother bleeding from her head hours after that fall in late July 2015. Hitchcock said she pleaded with nurses for help, and eventually one applied a Band-Aid. But the 89-year-old woman complained of not feeling well and staff eventually sent her to the hospital. By then it was too late. The internal bleeding was too great.

 

Starbreasha Mesha Ferguson has been accused of using an assisted living resident’s bank card to make multiple purchases while he was unable to take care of himself, according to an incident report.  Spartanburg County deputies arrested Ferguson and charged her with willful exploitation of a vulnerable adult.

Deputies went to the Oakridge Community Care Home in Spartanburg County in reference to reports of fraud, the report stated. When they arrived, deputies spoke to a woman who said there had been fraudulent activity on one of the residents’ bank accounts. The woman said there were multiple withdrawals on the account the man did not make between Dec. 12 and Jan. 17: two at American General Life Insurance, two at Americo Insurance Co., one at Charlie’s Used Cars and two to Spotify, a streaming music service.

The woman said she called Charlie’s Used Cars and the dealership told her the name of the person who had used the card, the report stated.

PennLive reported their big win in Court. The Pa. Department of Health has been directed to turn over the lease agreements of nursing homes to PennLive. Nursing home operators typically submit the leases to the health department, which regulates the industry. The state Office of Open Records directed the department to release the records within 30 days. PennLive has been aiming to obtain the leases for the nursing homes formerly managed by Golden Living. PennLive sought the records as part of an investigation which found that problems persist at many of those homes, even under new management.

PennLive reporter Daniel Simmons-Ritchie initially sought the leases as part of a special investigation examining the quality of care in nursing homes.  The state Office of Open Records ruled this week that the health department must provide the leases within 30 days.

Several months ago, PennLive asked the health department for the leases of 36 nursing homes that had previously been owned by the Golden Living chain. Golden Living sold its nursing home licenses to other operators but the company still owns the properties.

The health department rejected PennLive’s request for the documents, saying the records contained confidential information. PennLive appealed to the office of open records.

In its special report published last month, PennLive’s investigation found that many homes formerly owned by Golden Living continue to offer substandard care, even under new management. PennLive has been aiming to obtain the lease agreements because they could provide more insight into the operations of the homes.

Matt Yarnell, president of the SEIU Healthcare of Pennsylvania, told Pennlive that nursing home leasing deals make it difficult for the public to understand what companies own which homes. And Yarnell said that makes it hard to know what influence those companies may be exerting behind-the-scenes. The union represents 45,000 health care workers in Pennsylvania.

I think Pennsylvanians want to know where their tax dollars are going,” Yarnell said. “We need to know the financial arrangements behind these homes.”

David Marks, a Texas-based attorney who specializes in elderly care litigation, said some nursing home companies include very strict requirements in their leases.

Marks cited a case he’s litigating that involves a major assisted living chain. That chain, like Golden Living, leases nursing homes to other operators. Marks said the chain exercises a great deal of control over the operators through its leases.

The lease agreements are pretty shocking,” Marks said. “The leaser effectively controls operations, approves the budget, receives financial forecasts and – if the financial forecast is not agreeable – has the right to modify the budget.”

Freelance Contribution by Jason Lewis. 

 

 One of the most difficult aspects of being a caregiver is remembering to look after ourselves. Our job, even though it may be a labor of love, is to take care of another. Whether your loved one is in a nursing home, lives with you, or lives on his or her own, they deserve the best care you can provide. That’s why it is all-important to make sure you provide self-care in a multitude of ways.

Meet Your Basic Needs

Self-care starts by maintaining your health to feel your best. No matter how you compensate, nothing replicates a good night of sleep. If you find it hard to have restful nights, there are ways to improve how you sleep. Consistency is key, so go to bed and get up at the same time each day. However, if you can’t sleep, don’t stay in bed. Get up and move around a bit, then come back and try again. You should also keep your room cool and avoid bright lights, including the light from computer screens, before bed. Finally, avoid caffeine in the afternoon, and limit alcohol before bedtime.

Another important aspect of meeting your basic needs is fueling your body with healthy foods. A variety of fresh fruit and vegetables is the best way to start. If you are worried about vegetables being bland, use a heap of spices and herbs, both of which are healthful. To feel good, eat foods that are full of good bacteria such as natural yogurt, nuts, and seeds. Try to eat regularly throughout the day, so you don’t experience a dip in blood sugar and to keep your metabolism stable.

Look After Your Body

To build strength to help with your work, but also to feel your best, maintain your health by starting a workout regimen. Like sleep, consistency is the best way to make progress, so don’t be afraid to pace yourself. Start small, with only a few 30-minute sessions a week, to build your stamina. A slower buildup will keep you from burning out after only a few weeks of exercise. Working out can make you feel better physically and emotionally and a great boon in such a stressful line of work.

If you can, try to work out with other people. It will help give you motivation to go out and meet your commitments, but also it is simply more fun to exercise with a friend than to do so alone. And a workout that is fun is one you are more likely to stick with than one you dread.

Take Care of Your Soul

There is more to self-care than simply caring for your body. While important, it is equally essential to well-being to relax and find pursuits you enjoy. Give yourself permission to invest time in yourself, for no other reason than it makes you happy. Watch your favorite comedy show or movie. Spend time outdoors, hiking in nature or simply sitting on a bench at a park, reading a book. Speak to your friends and catch up. Dance to your favorite music. Whatever it is that gives you joy, take time to do it. You deserve to be happy.

These days, many people are just too busy to do the things they love. This is especially true for people who are taking care of their young children and their aging parents. If that’s the case for you, consider hiring out some daily tasks to make your life easier and free up time for yourself. Cleaning is one of the easiest and most time-consuming tasks to let go. Search for professionals near you online, read reviews, and hire someone with experience so you get time to spend on yourself and peace of mind that the job will be done well.

If you still have a hard time unwinding, even once you’ve found the time to do so, try something soothing like meditation. There are many ways you can meditate, so experiment to find one that works for you. Create a peaceful environment, focus on breathing slowly and deeply, and make yourself physically comfortable. If your back hurts, you won’t be paying attention to your mantra or clearing your mind. You’ll focus on the pain. Still, if you notice yourself breaking out of your meditative state, don’t think of it as failure. Allow the moment to happen, and move on. There is no right or wrong way to meditate or relax.

If you want to fully take care of another person, you have to take care of yourself first. If you feel exhausted, how will you see to the physically and mentally demanding tasks that must be done? Sleep well, eat right and for goodness’ sake, have some fun.

The South Carolina Association for Justice (SCAJ) Presidents’ Council today awarded Spartanburg attorney Gary W. Poliakoff the Mullis Award of Excellence, a top honor recognizing service, commitment and education in the protection and promotion of justice.

SCAJ has over 1300 members and is a leading advocate for matters related to an accessible judicial system and fairness under the law. The award was presented during their Annual Advanced Trial Lawyer College in Atlanta, Georgia, where lawyers from around the nation gather for training and education seminars.

“Gary is an example to all of us in the legal profession and embodies the core elements of commitment and education represented by this award.  He has taught and shared his unique knowledge in environmental law for decades, an area in which he is one of South Carolina’s top experts,” said Hugh McAngus Jr., a Midlands attorney and Chairman of the SCAJ President’s Council.

Gary is a graduate of Washington and Lee University and received his J.D. in 1977 from the University of South Carolina School of Law. Since then he has been an advocate for victims’ rights, receiving the Victims’ Voice Award from the South Carolina Jury Trial Foundation, and has distinguished himself as a top trial attorney over his four decades of practice. He is perhaps most well-known for his work in environmental law, where along with being one of the top South Carolina attorneys in the field, he has also volunteered to share his expertise with lawyers both young and old for over twenty years.  Gary also regularly volunteers for environmental causes and has served as Commissioner and Vice Chair of the South Carolina Forestry Commission under both Governor Jim Hodges and Mark Sanford.

Recipients of this award are selected by the Presidents’ Council, a group comprised of all the past presidents of SCAJ. The Council created the award in honor of J. Marvin “Bo” Mullis.  For over three decades, Bo was committed to helping lawyers expand their knowledge base through educational seminars.  He was instrumental in the formation and growth of the Advanced Trial Lawyer College, which is now a leading annual seminar for a wide array of continuing legal education (CLE) topics. When he passed away in 2012, the President’s Council created the award to honor Mullis and future individuals who share his commitment to “education, service, and excellence.”

Six veterans’ groups are demanding the Department of Veterans Affairs improve the quality of care at its nursing homes following a story by USA TODAY and The Boston Globe detailing “blatant disregard for veteran safety” at a VA nursing home in Massachusetts. Veterans of Foreign Wars, Disabled American Veterans, Paralyzed Veterans of America and Vietnam Veterans of America joined AmVets and the Legion in calling for action. Together, the groups are known as the “big six” and wield considerable clout in Washington. The groups, who together represent nearly 5 million members, said veterans who risked their lives for our country shouldn’t have to risk their lives in VA nursing homes. The story was the latest in an investigation by USA TODAY and the Globe that revealed care at many VA nursing facilities was worse than at private nursing homes in the agency’s own internal ratings, kept secret from veterans for years.

Anybody who respects veterans should be angered by this,” American Legion National Commander Brett Reistad said. “America’s veterans deserve better.”

In Brockton, Massachusetts, investigators found two nurses asleep during their shifts, even though the facility knew it was under scrutiny and inspectors were coming to visit, looking for potential signs of patient neglect. A whistleblower had reported that nurses and aides did not empty the bedside urinals of frail veterans, they failed to provide clean water at night and didn’t check on the veterans regularly.

 “The stories being reported about the treatment of some individual veterans at these facilities are nothing short of horrifying,” said Rege Riley, national commander of American Veterans, known as AmVets. He called on VA Secretary Robert Wilkie to “take swift and transparent action to fix this.”