Too Many Patients, Not Enough Staff

A $2 million settlement on a class-action lawsuit filed against the corporate owner of nursing homes in Southern California was announced this week. The lawsuit was filed on behalf of residents at one of the facilities owned by Brea-based Sun Mar Healthcare, Inc., which owns 17 nursing homes. The lawsuit alleged that Sun Mar defrauded residents and violated health and safety codes. Sun Mar officials allegedly promised residents a level of care they knew they couldn’t provide, given their level of staffing. A spokesman from the California Advocates for Nursing Home Reform stated that nursing homes are not precluded from taking on more patients than they can adequately provide for, a practice the organization deems tantamount to fraud.

Inspection and investigation records obtained during the course of the lawsuit indicated that one of Sun Mar’s homes had 77 health and safety violations from 2004-2008. Nursing home advocates strongly recommend that you thoroughly research a home’s history of health and safety violations with the California Department of Public Health. They also suggest that you ask about the staff to resident ratio. Spend some time observing the staff interaction with residents. Does it appear that call bells and resident requests are responded to in a timely manner? Does there appear to be adequate staffing for the number of residents?

Other observations you should make regarding the staff during your visit include the following:

• Do staff members treat the residents with dignity and respect?
• Do staff members speak directly to the residents, or do they treat them as if they were not present?
• Do staff members respect the privacy of residents? Do they knock before entering?
  Do the nurses and administrators know the residents?
• Is everyone friendly and receptive to questions?
• What languages does the staff speak in addition to English?
• Does the facility conduct background checks on staff prior to hiring?
• Are there therapists on staff or does the facility contract out for therapists?
• Is there a social worker on staff? Full or part-time?
• Are there permanent full-time nurses and nurse assistants (CAN’s) on staff? Or registry nurses and aides?

Keep in mind these are simply some of the observations you will want to note during your visit. Inadequate staffing has a direct impact on the quality of care received. Nursing homes promise to provide a high standard of care, but often fail to do so. Understaffed facilities have higher incidences of pressure sores, falls and other injuries.

Thanks for reading. If you have a question or comment, feel free to reply to this posting, or send me an e-mail. If you suspect a loved one has been harmed by negligence, neglect or abuse in a nursing home, contact me for immediate assistance.

Recent Developments in Elder Law

In my last blog entry I promised to keep readers apprised of any developments with the Fairness in Nursing Home Arbitration Act (the “Act”), which was approved by the House Judiciary Subcommittee on Commercial Law and Administrative Law earlier this week. The Act which would preclude nursing homes from forcing patients to sign an arbitration agreement prior to a dispute. The Act doesn’t preclude binding arbitration as an option in the event of a dispute, but instead requires the decision to be made by both parties after a dispute occurs. A resident cannot be forced to sign an arbitration agreement as a condition to admission to a nursing home or assisted living facility.

Republican members of the committee attempted to modify the bill, by trying to prevent the bill from being retroactive, or by attempting to exclude nursing home physicians. These modifications were rejected by voice voting. The committee’s approval of the Act makes it one step closer to becoming law. I’ll continue to keep you posted on further developments.

In other recent developments in the law regarding elders and nursing homes, the Centers for Medicare and Medicaid Services (CMS) announced last month the implementation of a new rating system for nursing homes. The new system will rate nursing homes on a 5-star scale, similar to the way hotels and restaurants are currently rated by critics, with one star being the lowest rating and five stars the highest possible rating. The purpose of the new system is designed to assist families in determining the best facilities in their area. CMS plans to implement the new system before the end of 2008; the new system will appear on Medicare’s “Nursing Home Compare” Web site.

The new system is a welcome improvement to the “Nursing Home Compare” Web site, which many have criticized as being too difficult to navigate. The Nursing Home Compare Web site has basic staffing information, general findings of inspection reports for the past three years, and a list of quality indicators. Quality indicators include the percentage of residents subject to some form of restraint; percentage of residents with pressure sores; and percentage of residents who have lost too much weight, among other factors. I will keep you updated on the implementation of the new “Nursing Home Compare” site.

Regardless of how a nursing home is rated, you should not allow a rating system to substitute for your own observations and best judgment. It is crucial to personally check out a nursing facility prior to making a decision on whether or not to entrust them with a loved one. Sadly, every day there is a story of nursing home abuse or neglect in the media. This week it was announced that a lawsuit has been filed against a Detroit-area assisted living facility over the death of Vunies High, sister of boxing legend Joe Louis. High died of hypothermia after wandering outside the facility in freezing weather. She was found with her face frozen to ice on the ground.

Thanks for reading my blog. If you have a question or comment, please feel free to post it here. If you have a question or need assistance with a potential claim against a nursing home or assisted living facility, contact me for a confidential consultation and immediate assistance.

Beware of Nursing Home Arbitration Agreements

Deciding on a nursing home facility can be a stressful event. Many patients enter a nursing home following an illness, and may be under duress or under medication at the time of their admission. Most patients fail to scrutinize the lengthy documents they must sign prior to admission, and inadvertently sign away their right to a trial before a jury if something goes wrong. Most nursing homes in California have an arbitration agreement as an attachment to their contracts with a patient. By law, the nursing home is not allowed to include an arbitration agreement in the admission contract or require that a patient sign such an agreement as a condition to entry. However, most patients sign the arbitration attachment without realizing the potential repercussions of their action.

Arbitration is an alternative method of resolving a dispute without going to court. Arbitrators consider federal and state law when resolving a dispute. Advocates of arbitration say it provides a faster resolution and is less expensive for both the nursing home and the resident. Critics of arbitration note that arbitrators are less likely to rule for the plaintiff, and if they do, the awards are generally smaller. Critics also note that since arbitration is confidential, it leads to less accountability on the part of the nursing home.

The federal Fairness in Nursing Home Arbitration Act introduced earlier this year would make arbitration agreements for nursing home patients unenforceable. Consumer advocates including the AARP and the Alzheimer’s Association support the Act. The Act doesn’t preclude binding arbitration as an option in the event of a dispute, but instead requires the decision to be made by both parties after a dispute occurs.

If you or a loved one must enter a nursing home, read all of the admission forms and attachments carefully. If you don’t understand something, consult your attorney prior to signing. Don’t let the facility pressure you into signing something you don’t fully understand. In California, you cannot be forced into signing an arbitration agreement as a condition for admission to a nursing home. You could be signing away your ability to hold the nursing home accountable for improper care.

Thanks for reading my blog. I’ll post an update on the Fairness in Nursing Home Arbitration Act at a later date. If you have a question or need assistance with a possible claim against a nursing home or assisted care facility, contact me for help and immediate assistance.