The Consumer Voice published an interesting response to a recent study by AON Risk Solutions which argued that nursing homes are facing increased liability costs at the same time their revenue is being strained by funding cuts, particularly from a Medicare reimbursement reduction that went into effect October 1, 2011.  The industry hacks then said tort reform and pre-dispute mandatory arbitration agreements will somehow decrease health care costs.  As the Consumer Voice reports:

“Here’s what they do not tell you:

 This report is published with the American Health Care Association – the largest trade association representing the interests of many nursing homes.

For the second time in FY 2012, publicly traded nursing home companies reported “profits that exceed expectationsi,” “surging operational incomeii” and “performance that outran fairly aggressive projections.”

Medicare reimbursement rates for skilled nursing facilities are 3.4% higher in FY 2012 than in FY 2010 – even with the reduction effective October 1st, 2011.

 Seven states were chosen by Aon for the report. Why were these states chosen and not others? Does the report only examine states with the results Aon wants? How can the report be a “national study” if the information comes from just 7 out of 50 states?

 The report says it distributed a request for data to for-profit and non-profit providers. It does not state that the request for data was sent to all providers in the country or even all providers in the seven states highlighted in the publication. Did only certain providers receive the data request? Were those providers cherry-picked?

 The report fails to identify the providers from which claim data was collected and how
many providers were included from each state. Consequently, data from a state could
conceivably be drawn from a single provider with a poor history of care and therefore not
be representative of the state as a whole.

 According to the report, approximately 19,500 non-zero claims were aggregated.
However, the report’s definition of a claim is any demand. A demand is not always a
formal lawsuit and claims of all kinds, including lawsuits, may be dropped. How many
of the 19,500 claims were actual lawsuits that were settled or went to trial?

 The report’s own data contradicts the contention that tort reform has reduced costs.
o West Virginia enacted tort reform in 2003. However, the loss rate has shown “a
strong upward trend
” (page 30).
o Georgia enacted tort reform in 2005, yet both the frequency of claims and the loss
rate has increased
(page 18) since that year.

 According to the report, the data comes solely from 8 of the 10 largest providers in the
country. However, the size of providers varies across the U.S., and the average size
nursing home is only about 108 beds.v How can the report claim to represent the
“perspective of all long term care providers” when it does not include data from small
and medium-sized providers?

 “Claims” include very serious harm and injury to residents, and even cases of resident
death. Examples include pressure ulcers down to the bone, malnutrition, dehydration,
sexual assault, broken bones, falls, and severe infections.

 Tort reform is touted as a way to reduce healthcare costs. However, medical malpractice litigation is not responsible for rising healthcare costs: between 2000 and 2011, the value of medical malpractice payments fell 11.9 percent while healthcare spending nearly doubled, increasing 96.7 percent.  Furthermore, in Texas – the state the report cites as “the example for effective tort reform” – researchers have found that tort limitations have not saved money.

 Arbitration completely strips the resident or the resident’s family member of their constitutional right to a trial by jury. Arbitrators are private individuals who may be chosen by the nursing home – not publicly elected or appointed officials like judges. Arbitration can be very costly and is usually far more expensive than court.  Residents and families not only have to hire a lawyer, they generally have to pay a part of the arbitrator’s fee – which is like having to pay the judge. And once a decision is issued, consumers typically cannot appeal it like they can in the court system.”

The Denver Post reported an interesting article about the issues of medical marijuana use in Colorado nursing homes.  Colorado passed a constitutional amendment legalizing medical marijuana for eight specific medical conditions relieved by marijuana but federal law prohibits the use.  What should a nursing home do?  Instead of caring for the rights of the residents, nursing homes are playing it safe and not dispensing prescribed drugs.

QP Health Care Services, which operates 25 facilities in Colorado, does not allow medicinal marijuana because of feared consequences. and Care Community in Denver has taken a zero-tolerance stance because of fear of criminal liability.

Sunrise at Cherry Creek permits medical marijuana and handles it like any medication.

"Attorney Fred Miles has represented local and national long-term-care facilities concerning the issue and regularly gives a presentation titled "Are Nursing Homes Going to Pot?" Until more clarity comes from the federal level on the matter, Miles said, most organizations will base policy on their use of Medicare and Medicaid funding."


Sarah Mars is a Public Affairs Specialist at the Agency For Healthcare Research and Quality.  She was nice enough to send me the below information to share. 

When patients become more actively involved in their own health, there’s a much stronger likelihood their health outcomes will be better.


That’s why “Questions are the Answer,” a new public education initiative from the U.S. Agency for Healthcare Research and Quality (AHRQ), encourages patients to have more effective two-way communication with their doctors and other clinicians.


“Questions are the Answer” features a website — — where you will find these free educational tools to use with your patients:


· A 7-minute video featuring real-life patients and clinicians who give firsthand accounts on the importance of asking questions and sharing information – this tool is ideal for a patient waiting room area and can be set to run on a continuous loop.

· A brochure, titled “Be More Involved in Your Health Care: Tips for Patients,” that offers helpful suggestions to follow before, during and after a medical visit.

· Notepads to help patients prioritize the top three questions they wish to ask during their medical appointment.


Clinicians can request a free supply of these materials by calling AHRQ at 1-800-358-9295 or sending an email to


US Senator Al Franken (D-MN) introduced a bill to protect Minnesota seniors who receive long-term services and supports in their homes and communities by guaranteeing them basic rights and protection from abuse and neglect. The Home Care Consumer Bill of Rights Act would direct states to develop a Home Care Consumer Bill of Rights, establish a voluntary Home Care Ombudsman Program and develop quality standards for home and community-based services.

"It became very clear to me after meeting with seniors from Moorhead to Winona that remaining independent and at home is a top priority for our seniors,” said Sen. Franken. “But in order to keep our seniors in their homes we have to make sure they’re safe. This legislation would ensure that seniors who choose to receive long-term services and supports in their homes and communities have the same rights and protections from elder abuse that seniors living in nursing homes already have.”

The Home Care Consumer Bill of Rights Act would:

· Direct states to develop a Home Care Consumer Bill of Rights to protect seniors who receive services in their homes and communities;

· Establish a voluntary Home Care Ombudsman Program to support states that choose to provide ombudsman services to resolve the concerns and complaints of seniors who receive home and community-based services; and

· Develop quality standards for home and community-based services so that seniors and their families can make more informed decisions about who provides their services.

The bill has been endorsed by the following Minnesota organizations: Aging Services of Minnesota, Care Providers of Minnesota, Center for Elder Justice & Policy at the William Mitchell College of Law, DARTS , Jewish Community Relations Council of Minnesota and the Dakotas, Jewish Family and Children’s Services, Lao Assistance Center of Minnesota, Lutheran Social Service of Minnesota, Mature Voices, Metropolitan Area Agency on Aging, Inc., Metro Meals on Wheels, Minnesota Board on Aging, Minnesota Homecare Association, Minnesota Network on Abuse in Later Life, Minnesota Rural Health Association, Sholom Community Alliance, Tubman Elder Care & Rights Center (Formerly ElderCare Rights Alliance), Vital Aging Network, and Volunteers of America – Minnesota; and by the following national organizations: AFSCME, Consumer Voice, Elder Justice Coalition, Generations United, LeadingAge, National Adult Protective Services Association, National Association of Elder Law Attorneys, National Association of Nutrition and Aging Services Programs, National Association of State LTC Ombudsman Programs, National Council on Aging, PHI – Quality Care Through Jobs, and Wider Opportunities for Women.

The Home Care Consumer Bill of Rights Act

By 2030, the number of Americans over the age of 65 will exceed 71 million. Of these Americans, almost seven in 10 will need long-term care services in their lives. It’s well-known that seniors would prefer to receive services in their homes and communities and that these services are a cost-effective alternative to nursing home care. However, while nursing home residents are guaranteed certain rights and protections from elder abuse, seniors who receive services in their homes and communities are often left without a place to turn if they feel unsafe or have problems with their services. Senator Franken’s bill would ensure that seniors who receive home and community-based services are guaranteed basic rights and are protected from abuse and neglect.

Section I: Home Care Consumer Bill of Rights

Senator Franken’s bill directs states to develop a Home Care Consumer Bill of Rights to protect seniors who receive services in their homes and communities. States will have the flexibility to establish their own bills of rights as long as the rights address consumer safety, consumer access to information, consumer choice, consumer dignity, and a consumer’s ability to redress grievances. States must also develop plans to enforce their bills of rights.

Section II: Home Care Ombudsman Program

The Older Americans Act authorizes states to operate a Long-Term Care Ombudsman Program to resolve complaints of residents of long-term care facilities. Several states have expanded their mission to serve seniors who receive home and community-based services, yet do not receive any federal funding for these activities. Senator Franken’s bill builds on state initiative by establishing a voluntary Home Care Ombudsman Program to support states that choose to provide ombudsman services to seniors who receive home and community-based services.

Section III: Quality Assurance for Home and Community-Based Services

Choosing the right long-term care services and service providers is an important decision for seniors and their families, yet the information needed to make the best decisions possible isn’t always available. Senator Franken’s bill calls for the identification of quality assurance standards – such as whether home and community-based service providers have received background checks or have been certified to provide certain services – and charges the Administration on Aging with developing consumer-friendly methods to let consumers know which services and providers meet these standards. The Administration on Aging is also charged with working with Area Agencies on Aging and Aging and Disability Resource Centers to help them incorporate the quality assurance standards into their informational resources so that consumers know which services are high-quality.



The National Consumer Voice for Quality Long-Term Care (formerly NCCNHR), announced the launch of its new guide Piecing Together Quality Long-Term Care: A Consumer’s Guide to Choices and Advocacy, which is intended to educate people with disabilities and older adults about their options for long-term services and supports and empower them to be self-advocates for quality long-term care. The guide also provides information and resources to assist people currently living in nursing homes to move back into the community.

The Consumer Voice has developed a website ( for the guide, which features Piecing Together Quality Long-Term Care in different formats, including an HTML version, a PDF version and audio portions of the guide. The website also includes three state-specific guides funded by the Consumer Voice and written by citizen advocacy groups in Kansas, North Carolina and Virginia. These state guides are designed to assist older adults and persons with disabilities in making informed decisions when choosing long-term care services. A hardcopy of the 80-page, professional bound guide is available for $20 and can be purchased online.

 "While older adults and individuals with disabilities may have different needs, they all deserve a choice of quality long-term care services," said Consumer Voice Executive Director Sarah F. Wells. "Many consumers face the daunting and overwhelming task of trying to navigate a long-term care system that is fragmented and complicated. This project aims to build a bridge between the aging and the disability communities and create a strong, unified long-term care consumer voice.

 "We are launching the guide at this time because the Affordable Care Act is increasing opportunities for the elderly and persons with disabilities to receive care in their own homes."

 The publication of this new resource coincides with the one-year anniversary of the signing of the ACA, which created some of the most significant improvements and changes in long-term care in a generation. Through the ACA, consumers will see increased transparency of nursing home operations and quality; improved safety for people receiving care in long-term care facilities and their homes; strengthening of agencies that investigate neglect and abuse of the elderly, including the long-term care ombudsman program, state survey agencies and Adult Protective Services; and new programs that provide incentives to states to provide more Medicaid home and community-based services.

 This guide was funded by the Milbank Foundation for Rehabilitation. For more information on this project and on health care reform, visit

The National Consumer Voice for Quality Long-Term Care is a 501(c)(3) nonprofit organization founded as the National Citizens’ Coalition for Nursing Home Reform (NCCNHR) in 1975 by Elma Holder. The organization represents the consumer voice at the national level for quality long-term care, services and supports by advocating for public policies that support quality care and quality of life responsive to consumers’ needs in all long-term-care settings; empowering and educating consumers and families with the knowledge and tools they need to advocate for themselves; training and supporting individuals and groups that empower and advocate for consumers of long-term care; and promoting the critical role of direct-care workers and best practices in quality-care delivery.

Consumer Voice Statement for House Hearing on Medicaid:

Preserve Protections for People Receiving Long-Term Care



The Consumer Voice released the statement below for today’s House Energy and Commerce Committee hearing on Medicaid. Governors Haley Barbour (R-MS), Gary Herbert (R-UT), and Deval Patrick (D-MA) will testify about "the burdens imposed by requirements [in the health care reform law] to maintain their Medicaid eligibility in return for federal dollars," according to the committee’s press release.


The Consumer Voice’s statement reflects advocates’ concern that budget deficits lead to state demands for Congress to give them more flexibility in how they administer Medicaid or even turn it into a block grant with few federal guarantees of coverage or protections for beneficiaries. The loss of federal mandates is partricularly threatening to consumers when combined with budget cuts and provider demands for less regulation. In 1995, Congress passed a Medicaid block grant that left only the shell of the Nursing Home Reform Law intact. The bill was vetoed by President Clinton.




Medicaid is not only a safety net but also a lifeline for more than 3 million people who have chronic, severe disabilities and incomes too low to pay for the supports they need to perform routine daily activities. Almost 1 million Medicaid beneficiaries receive long-term care in nursing homes.


The National Consumer Voice for Quality Long-Term Care (formerly NCCNHR, the National Citizens’ Coalition for Nursing Home Reform) has represented long-term care consumers for more than 35 years. We are deeply concerned about calls for flexibility in federal regulations as a solution to the budget problems now affecting many states, because historically, this budget "solution" has threatened access to home and community-based services and public oversight of nursing homes. When states reduce their Medicaid budgets, home and community-based services are usually the first to be cut, forcing recipients into more expensive nursing home care. But in 1995, deficit reduction also became a rationale for stripping Medicaid of rights and protections for those who live in nursing homes, including annual inspections; the minimum 75 hours of training for nurse aides, who provide most of the care; and the federal government’s authority to ensure compliance. Although that bill was vetoed, the nursing home industry is currently supporting a proposal to reduce thorough inspections in some nursing homes to as little as every three years.


In 2007, the Consumer Voice published "The Faces of Neglect: Behind the Closed Doors of Nursing Homes," which put a human face on the suffering that results from poor care. Shortly, we will release a new report called "The High Cost of Poor Care: The Financial Case for Prevention in American Nursing Homes." The report uses recent research to illustrate the high price paid for failure to prevent such common occurrences as pressure sores, falls, malnutrition, dehydration, incontinence, and avoidable hospitalizations and illustrates the savings generated by providing good, preventive care.


Consumers recognize the difficult position of federal and state officials as they wrestle with budget deficits and revenue shortfalls. However, we urge Congress to weigh the human and financial impact of reducing or even eliminating services and federal protections that took decades to put in place. The costs for America’s elderly and persons with disabilities and their families are simply too high to ignore.

The National Consumer Voice for Quality Long-Term Care (formerly NCCNHR) is a 501(c)(3) nonprofit membership organization founded in 1975 by Elma L. Holder that advocates for quality care and quality of life for consumers in all long-term care settings.


McKnight’s had an article about the tragic case of Brian Lee who was fired by the infamous new governor of Florida Rick Scott.  Lee was fired as the director of Florida’s Long-term Care Ombudsman Program (after seven years) for doing his job.  He requested ownership information from nursing homes that are given tax payer funds through Medicare and Medicaid.  The request was authorized under new federal healthcare legislation which will promote transparency and accountability.  Scott fired Lee after operators and industry lobbyists had complained about the request.  Rick Scott is owned by Big Insurance.

Consumer Voice Statement on Florida Ombudsman Resignation:


The independence and effectiveness of the Florida long-term care ombudsman program were dealt a severe blow last week by the forced resignation of state ombudsman Brian Lee. The Consumer Voice is shocked that Gov. Rick Scott forced out the ombudsman, who represents some of the state’s most vulnerable residents, on the recommendation of nursing home and assisted living operators who are the subject of the ombudsman program’s oversight.


The ombudsman is mandated under the Older Americans Act to be an independent voice for residents and free of conflicts of interest. Ombudsmen investigate resident complaints and serve as advocates to ensure that residents in nursing homes and assisted living facilities are protected under the law.


"Brian was recognized by his colleagues in Florida and nationally for his commitment to protecting the rights of long-term care residents and working with residents, families and providers to improve care," said Sarah F. Wells, Consumer Voice executive director. Wells said the office must be independent and free of political interference to perform its statutory functions.


Lee was asked to resign after he asked the state’s nursing homes for names of companies and individuals with an ownership and operational interest in their facilities. State ombudsmen were given authority to request the information from Medicare and Medicaid-funded nursing homes in transparency provisions in the health care reform law. The law was the subject of congressional hearings in which witnesses testified that it is often impossible to hold nursing homes accountable for quality because of complex ownership and operating structures. In a recent report, the Government Accountability Office said, "To determine the effect of ownership on nursing home quality of care, it is necessary to have complete and accurate ownership information that provides a clear understanding of the relationship of each owner to the nursing home and any other owners."


Ombudsmen in some states report that nursing homes routinely provide the information when it is requested. In 2012, a summary of the ownership data will be reported on the federal government’s Nursing Home Compare website, which is designed to help families choose a nursing home.


"We are very concerned that the governor of Florida has yielded to industry demands to dismiss an effective advocate for residents in a state that so many elderly Americans choose as their retirement home," said Wells. "As a national voice for long-term care residents, we strongly urge the governor to follow the law and allow the ombudsman program to operate without interference."

The National Consumer Voice for Quality Long-Term Care is a 501(c)(3) nonprofit organization founded as the National Citizens’ Coalition for Nursing Home Reform (NCCNHR) in 1975 by Elma Holder. The organization represents the consumer voice at the national level for quality long-term care, services and supports by advocating for public policies that support quality care and quality of life responsive to consumers’ needs in all long-term-care settings; empowering and educating consumers and families with the knowledge and tools they need to advocate for themselves; training and supporting individuals and groups that empower and advocate for consumers of long-term care; and promoting the critical role of direct-care workers and best practices in quality-care delivery. had an article about the lawsuit against the infamous Extendicare.  See article here.

The article mentions that the lawsuit against Extendicare has been expanded to include new allegations that the homes admitted residents with disregard to meeting their needs in order to boost profits. The suit also alleges that Milwaukee-based Extendicare Health Services violated consumer protection laws by advertising high-quality, skilled nursing care and failing to deliver.

Extendicare, which runs one of the largest nursing-home chains in North America, violated a state law that bars nursing homes from making residents sign a form waiving liability for injury or property loss. Extendicare is "more interested in protecting themselves from liability and thereby increasing profits than protecting the rights, health and safety of their own elderly and vulnerable residents," the complaint states.

Federal records show that nearly all of Extendicare’s Washington homes have higher-than-average scores for health deficiencies from state inspectors.