U.S. Just Made It a Lot Less Difficult to Sue Nursing Homes

Elizabeth Barrow case

The federal agency that controls more than $1 trillion in Medicare and Medicaid funding has moved to prevent nursing homes from forcing claims of elder abuse, sexual harassment and even wrongful death into the private system of justice known as arbitration.

An agency within the Health and Human Services Department on Wednesday issued a rule that bars any nursing home that receives federal funding from requiring that its residents resolve any disputes in arbitration, instead of court.

The rule, which would affect nursing homes with 1.5 million residents, promises to deliver major new protections.

Clauses embedded in the fine print of nursing home admissions contracts have pushed disputes about safety and the quality of care out of public view.

The system has helped the nursing home industry reduce its legal costs, but it has stymied the families of nursing home residents from getting justice, even in the case of murder.

A case involving a 100-year-old woman who was found murdered in a nursing home, strangled by her roommate, was initially blocked from court. So was a case brought by the family of a 94-year-old woman who died at a nursing home in Murrysville, Pa., from a head wound. The cases were the subject of a front-page article in The New York Times last November.

“The sad reality is that today too many Americans must choose between forfeiting their legal rights and getting adequate medical care,” Senator Patrick Leahy, a Democrat of Vermont, said in a statement on Wednesday.

The nursing home industry reacted strongly against the change. Mark Parkinson, the president and chief executive of the American Health Care Association, a trade group, said in a statement on Wednesday that the change on arbitration “clearly exceeds” the agency’s statutory authority and was “wholly unnecessary to protect residents’ health and safety.”

The new rule on arbitration came after officials in 16 states and the District of Columbia urged the government to cut off funding to nursing homes that use the clauses, arguing that arbitration kept patterns of wrongdoing hidden from prospective residents and their families.

With its decision, the Centers for Medicare and Medicaid Services, an agency under Health and Human Services, has restored a fundamental right of millions of elderly Americans across the country: their day in court.

It is the most significant overhaul of the agency’s rules governing federal funding of long-term care facilities in more than two decades.

And the new rule is the latest effort by the Obama administration to rein in arbitration’s parallel system of justice that was quietly built over more than a decade.

In May, the Consumer Financial Protection Bureau, the nation’s consumer watchdog, unveiled the draft of a rule that would prevent credit card companies and other financial firms from using arbitration clauses that bar consumers from banding together in a class-action lawsuit.

While Democrats, including Mr. Leahy, have tried to get rid of arbitration through legislation, their efforts have met resistance from various industry groups. The efforts by the consumer agency and now Health and Human Services do not require congressional approval.

Like other rules put forth by the administration, the rule on nursing homes that receive federal funding could be challenged in court. But absent those challenges, the rule is scheduled to go into effect by November. Only future admissions would fall under the new rule.

The nursing home industry has said that arbitration offers a less costly alternative to court. Allowing more lawsuits, the industry has said, could drive up costs and force some homes to close.

But some government officials and elder care lawyers see a different rationale. For corporations, they say, arbitration also potentially keeps embarrassing practices under wraps.

The nursing home rule, which was first proposed in July 2015, was aimed at improving disclosure. The agency began to re-examine the rule after a chorus of patient groups raised concerns about the widespread use of arbitration.

The final version of the rule went a step further than the draft, cutting off funding to facilities that require arbitration clauses as a condition of admission.

Lawyers who work with the elderly say that people are being admitted to nursing homes at one of the most stressful moments of their lives. Distraught and often desperate for a room, prospective residents do not fully grasp what they are signing, the lawyers say.

Sometimes, that does not matter. Judges are bound by a pair of Supreme Court decisions, in 2011 and 2013, that blessed the widespread use of arbitration clauses. Those decisions have made it virtually impossible to overturn clauses, even those signed by the most vulnerable nursing home residents.

An appeals court refused to throw out an arbitration clause signed by a man who could not read or sign his name, reasoning that “illiteracy alone is not a sufficient basis for the invalidation of an arbitration agreement.”

In the last decade, arbitration clauses have affected things like cellphone contracts, employment agreements and student loans.

But even as the use of arbitration clauses spread, little was known about what happened to those who took their chances there. Companies argued that arbitration offered a simpler, swifter and less expensive alternative to court, without the headaches and delays.

Those claims, though, were largely anecdotal because arbitrations are confidential and there is no federal database that records their outcomes.

In a yearlong investigation, The Times tried to pierce the veil, getting inside the secretive proceedings. To do that, The Times examined records from more than 25,000 arbitrations between 2010 and 2014 and interviewed hundreds of lawyers, arbitrators, plaintiffs and judges in 35 states.

The proceedings bear little resemblance to court. They have been conducted in the offices of lawyers who represent the companies accused of wrongdoing.

In the case of nursing homes, The Times found many troubling examples where issues of abuse and potential neglect never made it into the public light because they were blocked from court.

In May 2014, for example, a woman with Alzheimer’s was sexually assaulted two times in two days by residents at a nursing home in Lemon Grove, Calif. A subsequent investigation by the state’s department of public health found the nursing home “failed to protect” the woman.

But when her family tried to hold the nursing home accountable in court, their case was scuttled because of an arbitration clause. Ultimately, they gave up and settled with the nursing home.

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U.S. Just Made It a Lot Less Difficult to Sue Nursing Homes

More older adults spending ‘golden years’ in homelessness

After a lifetime of working hard, Linda Boamah thought she was setting herself up for a comfortable retirement.

But the former optical-lab worker became ill with multiple chronic conditions in 2014 and in less than two years lost everything, including her house, life savings and pride.

"I couldn't work anymore because I got congestive heart failure, COPD (chronic obstructive pulmonary disease) and am diabetic," said the 62-year-old East Side resident. "The money I had saved up was quickly depleted, and I was terrified."

Thankfully, a friend stepped in and offered Boamah a room to sleep in, sparing her from becoming part of the growing population of seniors living on the streets and in shelters.

About half of the homeless in the United States are people 50 or older, studies show. The number of older homeless adults is projected to increase by 33 percent in the next decade and double by 2050.

"We're at the beginning of the wave and have an opportunity to not only improve the quality of life of these homeless and formerly homeless elders, but also extend their lives," said Katrina Van Valkenburgh, central region managing director for CSH, also known as the Corporation for Supportive Housing.

The average life expectancy for a homeless older adult is 63 years, compared with 80 for someone who always has had stable housing, she said.

Leaders from across the Midwest are meeting in Columbus this week to talk about helping this aging homeless population get into and keep affordable housing. The two-day event is hosted by CSH and National Church Residences, which specializes in low-income and affordable senior housing.

It kicked off on Tuesday with a tour of two supportive housing properties owned by National Church Residences. Today, housing experts from across the country are meeting.

Aging adults who have been homeless experience chronic illnesses and geriatric conditions 15 to 20 years earlier than the general population, said Dr. Margot Kushel, a professor of medicine at the University of California-San Francisco who followed 350 homeless people in Oakland, California.

Although the median age of the participants was 58, they had more trouble bathing, dressing and eating than many in their 70s, 80s and 90s, Kushel said. They also had a harder time using transportation, taking medication, managing money, applying for benefits and arranging job interviews.

One answer is creating more affordable and supportive housing — the theme of today's gathering. Supportive housing complexes provide tenants with tailored services such as life-skills training, alcohol and drug abuse programs and case management so they can have more stable, productive lives.

After six months of living with her friend, Boamah was able to secure an apartment in June at National Church Residences' Commons at Third near Grandview Heights.

"I was so worried before about what was going to happen to me that I was making myself even more sick," she said. "I love my new home. It's peaceful and quiet."

Though supportive housing has been available for people who have been homeless or have struggled with addiction or mental illness for decades, they need to be adapted to the unique needs of older residents, Kushel said. Rooms, for instance, need good lighting and grab bars in the bathroom. Many residents also could use personal-care attendants to help them bathe and get dressed.

Leon Williams, 63, of the North Side, said if it weren't for the supportive services at Commons at Third, he'd probably still be living in a nursing home, where he landed in 2009 after falling and dislocating his shoulder. He remained there for six years because of prostate cancer, a knee replacement and a spinal condition that forced him into a wheelchair.

"Unlike the nursing home, I can come and go when I please," he said, adding that he enjoys eating at the many restaurants near his new home.

After two bouts of homelessness, mostly recently in 2005 after a difficult divorce that led to substance-abuse problems, Jerome Johnson, 47, of the West Side, said he's glad to have found permanent supportive housing at another National Church Residences property, Commons at Buckingham, while he is still relatively young and healthy.

"It took me a lot of work and paperwork to get here, and I'm never leaving if I can help it," he said.

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More older adults spending ‘golden years’ in homelessness

The Loneliest Patients: When They Can't Make Decisions, Who Will?

The elderly man hadn’t sought medical care in 20 years when he collapsed on his way to the grocery store. At the hospital, he was diagnosed with a bloodstream infection, dementia and tuberculosis. Doctors suspected he had bladder cancer.

He’d been abusive, and estranged family members refused to help in his health care decisions. The man didn’t want any treatment, or even to be evaluated medically. But his dementia deprived him of the mental capacity to make his own decisions. Doctors kept him in acute care and treated him for TB, as public health law required, but nothing else.

Three months later, on the day his guardianship hearing was scheduled, the man died from infections. 

Could his infections, acquired in the hospital, have been treated with antibiotics? Or was there a decision not to treat the infections, to let them run their course? Either way, who decided?

Chances are, the doctor in charge did. Chances are, the decision was made “off the radar,” and did not follow hospital policy — if the hospital even had a policy. Chances are, the decision was right, but arrived at through a process that would not look good on a newspaper's front page.

The patient lived and died in Colorado, but aspects of his story are increasingly familiar in critical and acute care wards in Boston and elsewhere.

These patients go by many names: conserved, unknown and unrepresented, unbefriended, incapacitated and alone, to name a few. The sad irony is, they answer to none of them, and cannot inform their own care.

For decades, public guardians — court-appointed decision-making advocates for patients who need them — have been held up as the ideal for such cases, but funding and other support have been inadequate. And in some places, Massachusetts included, there is no public guardianship. Here, how such decisions are made varies from hospital to hospital. Some rely on private guardians; some have learned to avoid guardians.

This hardly inspires trust in the system, and the need for a process that is ethical, legal and serves the patient’s best interest is only becoming more urgent.

Why the urgency? Growing roughly commensurately with the doubling of America's senior population, the ranks of the unbefriended are set to rise from about 35 million in 2000 to a projected 72 million in 2030. In Massachusetts, people 65 and older are projected to grow in number from 860,000 in 2000 to 1.5 million in 2030.

Decisions about medical care ideally combine medical expertise about what’s wrong and what’s possible with the patient’s own wishes and values. But with the unbefriended, those wishes and values cannot be known.

In a medical system where patient autonomy rules, these patients have none.

About a half million Americans die in critical care each year, including a significant majority after a decision has been made to limit life support. How many are unbefriended is difficult to say, but the low estimate is nearly 6 percent, or about 30,000. It may be closer to twice that. In one urban hospital studied, one in four ICU patients who died was unbefriended.

In Colorado, concern over elder abuse prompted the study of this patient population. Similar studies going back three decades have been conducted by the Markkula Center in Northern California, by the American Bar Association, and the Conference of State Court Administrators, among others. Each saw a growing wave of incapacitated patients and a court system unprepared to deal with it. And each study recommended significant improvements and funding for public guardianship, but response has never met the need.

It simply costs too much, and unbefriended patients, by definition, have no constituency.

The public clearly understands the harm of hastening death, with possible exceptions for terminally ill patients suffering unbearably. But prolonging dying is often considered a lesser harm.

That is one source of the unbefriended dilemma, which pits civil rights protections against patients' best interests. And in a society that treasures individual choice so highly, a dying patient incapable of making a choice creates a profound life-and-death quandary.

Douglas White, a critical care physician and bioethicist from the University of Pittsburgh, has studied unbefriended patients closely and says, “Process is most necessary for a patient who will never leave the hospital.”

I believe hospitals need a clear, transparent process for decisions to be made internally. Any such process will spark concerns over abuse or physician bias. And yet, already there are models that are ethical, legal and worthy of public trust.

Both New York State and the Department of Veterans Affairs (the former by statute, the latter by federal policy) keep the courts and guardianship as options but give attending physicians full authority for medical decisions.

Safeguards are in place to ensure it is not the physician’s recommendation alone. Both New York and the VA require second opinions and review by a committee within the institution. Ultimately, the hospital is responsible.

Research into these patients is growing but limited. Many suffer dementia, mental illness or addiction. Some are homeless. Some have scared off loved ones; others have simply outlived them.

One small study revealed this troubling fact: Unbefriended patients continued to receive life-sustaining treatments such as feeding tubes, ventilators and antibiotics for pneumonia significantly longer than comparable patients who had decision-making surrogates.

Some patients receive too much treatment and others, too little. For many, death is prolonged. Their caregivers suffer conflict, moral distress and burnout.

In New York, for legal legitimacy, a decision to withdraw treatment with the intent of allowing death to occur must meet these criteria: the patient’s condition is incurable or irreversible; the patient is permanently unconscious and expected to die within six months; and treatment is causing unacceptable, even inhumane, suffering.

The VA policy has a curious requirement. The physician must explain to a patient that they have been determined to lack capacity. If the patient cannot understand, why require a explanation?

One reason: Capacity is not constant; for some patients, it comes and goes. More significantly, I think, the VA has created a ritual by which the physician must see the patient as a person, not an incapacitated set of symptoms.

And so it was notable in summer 2015 when a California judge ruled as unconstitutional a state law that allowed nursing home physicians to make all decisions for incapacitated patients — because the law did not require that patients be told and given a chance to object.

The ruling did not solve the problem of over-treatment and under-treatment of vulnerable patients. That problem continues, and not only in California.

But the ruling did underscore the need for an efficient and fair process that respects the patient’s best interests and civil rights. Massachusetts should protect its most isolated patients by writing this kind of policy into law. Thanks to New York and the VA, it won’t require starting from scratch.

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The Loneliest Patients: When They Can't Make Decisions, Who Will?

Protect clients and caregivers against claims of senior financial fraud

As the American population keeps growing grayer, senior financial fraud has become a hot-button issue for politicians and regulators.

Three bills designed to protect seniors from financial fraud are moving through the Senate Judiciary Committee with bi-partisan sponsorship and support.

A new model state law adopted by the North American Securities Administrators Association (NASAA) requires financial advisors and firms to report suspected financial exploitation of seniors to regulators and adult protective services offices.

NASAA also has proposed model state legislation that would allow financial institutions to place a 10-day hold on disbursements whenever firms or advisors believe harm may result to an investor age 60 or older. FINRA has requested comments on a proposed rule that would do the same for accounts of people age 65 and older.

Stronger legal protections are: 1) expanding and clarifying the definition of senior financial fraud; and 2) expanding the audience of potential victims to include anyone above a certain age (e.g., 60 or 65). In the past, some statutes have focused only on fraud against mentally impaired seniors or those living in institutions.

Claims of financial fraud often are made against family members, including those closely involved in senior caretaking.  Consider these situations, and ask yourself whether they involve senior fraud:

• A husband is caring for his 66-year-old wife, who is temporarily incapacitated following a stroke. The husband wants to liquidate funds from the wife’s checking account, in her sole name, to pay for care. He writes and dates the check and guides the pen in her hand as she signs. Several weeks later, their daughter files a charge against him, claiming forgery.
  
• A son is caring for his 85-year-old father in an assisted-living facility. The father does not have access to a computer, but does have an online account at MySocialSecurity.com. The son goes to the site, verifies the father’s identity, and logs on with the father’s username and password. The son then changes the bank account for receiving the father’s Social Security benefits, so the son can access benefits to pay for the care facility. Weeks later, a family member sees this change, asks the father if he authorized it, and files a claim of senior financial abuse against the son.
  

These are possible cases of senior financial abuse – even though the caregiver has good intentions – and both situations could have been avoided with planning. Here's how: (Click to Continue)

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Protect clients and caregivers against claims of senior financial fraud

Nursing Home Group Sues U.S. Government Over New Lawsuit Rule

The American Health Care Association, an industry group that represents most nursing homes in the U.S., has filed a lawsuit against the federal government over a new rule that protects the right of patients and their families to sue nursing homes in court.

The new rule, which is part of a set of regulatory reforms set to take effect on Nov. 28, bans so-called pre-dispute binding arbitration clauses in nursing home contracts, which require patients and their families to settle any dispute over care outside the court system via arbitration.

As The Two-Way has reported, "The rule applies to facilities that receive money from Medicare or Medicaid — which is nearly all of them."

The lawsuit filed Monday in Mississippi by the American Health Care Association calls the arbitration clause ban "arbitrary and capricious" and contests the authority of the Centers for Medicare & Medicaid Services, which drafted the rule, to regulate how nursing homes handle disputes. The suit asks a federal court at least to delay the ban from taking effect when the rest of the rules become law in November, while the court considers the industry group's challenge.

The lawsuit also echoes comments made to NPR by an American Health Care Association spokesman in arguing that arbitration is "an equally fair — yet far simpler and less costly — means of seeking redress as compared to the complicated and slow-moving court system."

The American Bar Association noted in 2014 that "arbitration has a number of elements that lend to its reputation for efficiency and expediency, including traditionally faster timelines and therefore lower costs for case resolution." A 2009 study commissioned by the American Health Care Association found the average awards after arbitration in nursing home cases were 35 percent lower than if the plaintiff had gone to court.

"Long-term care facilities and their residents and residents' families should not be deprived of the ability to choose arbitration, a valuable form of dispute resolution," the suit states.

As we reported when the new rule was announced in September, it does not prevent patients and their families from pursuing arbitration if both sides agree to it.

The heads of the Department of Health and Human Services and Centers for Medicare & Medicaid Services, who are both named as plaintiffs, have not commented on the case since the lawsuit was filed.

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Nursing Home Group Sues U.S. Government Over New Lawsuit Rule

NJ: Brick lawyer stole $1.2 million from elderly

A Brick attorney who has long served as an advocate for the elderly and held himself out as an expert on elder law has been charged with stealing more than $1.2 million from elderly clients, authorities say.

Robert Novy, 65, whose office is in Manchester, was arrested on charges of first-degree money laundering, second-degree theft by unlawful taking, and second-degree misapplication of entrusted property, according to a statement from the Office of Attorney General Christopher Porrino. He was taken to Ocean County jail with bail set at $500,000.

“While Novy held himself out as a leading legal advocate for the elderly, we allege that he corruptly used his reputation and his law license to prey on vulnerable seniors, taking control of their finances and stealing more than $1 million from their life savings.” Porrino said in the statement. “In his greed, Novy not only betrayed his oath as a lawyer to uphold the law, he betrayed all standards of decency.”

Many of the victims were people without close relatives or were of diminished capacity, Porrino's office said.

Gerald Krovatin, Novy's attorney, said his client had done nothing wrong.

"Bob Novy has had a distinguished career as an attorney and has helped many people over his 40 years in practice in elder law,"Krovatin said. "He denies these charges and he will fight them with every bone in his body.”

Novy spoke about elder law on “Inside the Law,” a radio program on WOBM-AM – the station’s website shows he covered topics such as estate planning, wills, powers of attorney, Medicaid, real estate settlements and asset protection. In an episode in May 2015, Novy interviewed a sergeant with the Ocean County Prosecutor's Office about scams targeting seniors. (Click to Continue)

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NJ: Brick lawyer stole $1.2 million from elderly

Judge retires after discipline for racially insensitive comments

Judge Michael Creedon is retiring with a six-figure pension after being disciplined for insensitive comments.
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Judge retires after discipline for racially insensitive comments

Financial Help Proposed for PA Elder Homeowners

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KINGSTON, LUZERNE COUNTY (WBRE/WYOU) -- Pennsylvania seniors looking for some help to pay for their home renovations may be in luck. A state senate bill was just introduced to provide older homeowners a tax credit worth thousands of dollars.

Of the hundreds of senior citizens attending this year's Luzerne County Senior Expo at the Kingston Armory on Thursday, many are concerned about the financial pinch they and others in their age bracket feel. "You know, people are on a fixed income. A lot of people don't have a lot of money," said Nancy Beach of Berwick. The last thing older homeowners need is a costly repair they cannot afford. 83-year-old homeowner Bob Stiff of Jackson Township said, "Got to replace a furnace, eight or $9,000. A roof." Retiree Bonnie Dunnigan owns a home in Carverton. "I'm gonna need some repairs but I'm not giving it up. I'm not going into any kind of senior living yet," she said.

State Senator John Yudichak (D) 14th District reflected on the situation facing many older Pennsylvanians. "Now, because of maintenance conditions, they're forced to go into their pocket, it becomes very difficult." Enter the Aging in Place bill. It's a measure introduced in the state senate in September. Senate Bill 1382, which Sen. Yudichak co-sponsored, would establish the Livable Home Tax Credit. Under the legislation, eligible homeowners would receive a tax credit up to $2,000 to renovate their homes to meet accessibility needs. The credit would expand to up to $5,000 in its second year allowing more older Pennsylvanians to stay in their homes. "That's where we should have folks living out their days, their golden years. They've built this country. They've build Pennsylvania. They've made their contribution," said Sen. Yudichak.

State Senator Lisa Baker (R) 20th District serves on the State Senate Aging & Youth Committee. "If we can do some minor things and keep people in their own home with some supports, it's where people would like to be if they don't need that higher level of care."

Sen. Yudichak said he hopes the Aging in Place bill will go the Senate Aging & Youth Committee to push for a hearing and put it to a floor vote by the end of the year.

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Financial Help Proposed for PA Elder Homeowners

Signs of Nursing Home Neglect, Abuse

There may come a time when some of us face the painful decision of putting our parents or grandparents in a nursing home because they need full-time professional healthcare.

If you or a loved one does have family in a nursing home, you should be aware of a new rule that the Centers for Medicare and Medicaid Services (CMS) says will, for the first time, allow consumers to sue nursing homes for neglect. Before now, most long-term care facilities have included arbitration clauses in the contracts that would block the family from suing over alleged neglect. According to the ABA Journal, healthcare industry lawyers say a challenge to the new rule is likely.

Ginalisa Monterroso, CEO of the Medicaid Advisory Group Opens a New Window. , who has spent more than 25 years in the healthcare industry, discussed with FOXBusiness.com what the new ruling means for nursing home residents and what you can do to ensure your loved one is placed in a safe environment for long-term care. Here is what you need to know.

Boomer: What rights do consumers and families now have under this new rule?

Monterroso: The new ruling, allows nursing home residents and families to take residential facilities to court and pursue justice for wrongful care. This decision is long overdue and a victory for all families and former nursing home residents, who, were unable to sue their nursing homes even when they were negligent. Before this ruling, families and patients were forced into arbitration where they frequently did not have the justice system by their side. In most cases, the public never got to hear about these cases of abuse because the dispute was discussed behind closed doors where the media and others couldn’t hear the allegations. And worse, when the arbitrator ruled against the nursing home and forced a ruling, no one got to hear the end result, or even the initial claim.

Boomer: What steps should family members take in researching nursing homes – before signing a contract?

Monterroso: Most important, don’t ever feel rushed to pick a facility because a hospital is pushing a discharge. The hospital is aware you are allowed to view facilities and make the appropriate choice for your loved one.

When making a decision to admit a sick loved one into a long-term care facility, never act on impulse, or even take a quick recommendation from the treating health professionals (who may recommend any facility to quickly discharge the patient). Medicaid Advisory Group recommends scheduling a tour of the facility before being admitted. Everyone has a right to pick and visit a facility. Medicaid Advisory Group urges everyone to visit the exact floor and room the potential resident may be admitted. You can also research the nursing home on this government website: https://www.medicare.gov/nursinghomecompare/search.html Opens a New Window. .

That Medicare website is star rated - one star being the lowest score and five being the highest and most recommended facility.

Think of a nursing home admission as picking a babysitter for your child. We as consumers forget our elderly, sick and disabled need all the essentials our children require when making a placement.
Google the facility and click news to see if the facility has had any negative press. Check references and ask to speak to any residents or families at the facility. You should also check online with the State Department of Health to see if the facility was ever sanctioned or fined. Most of all go with your gut feeling. If something doesn't feel comfortable, believe your instinct.

Boomer: How can family members detect if their loved ones are at risk of abuse?

Monterroso: When visiting their loved ones in long-term care facilities, if you see your loved one suddenly change in behavior and they seem agitated, irritable and being aggressive, that’s an indication something is not right. Many patients who have dementia are the ones who are being abused due to the fact everyone thinks they are forgetful or making things up. If a loved tells you, someone, physically or verbally abused them -- investigate the allegation. Speak with the nursing station, ask questions. Report the concern to the facilities administration, never ignore the resident. 90% of the time there has been some mistreatment, whether they were being yelled at, shoved or ignored that would make that resident tell you about an incident.

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Signs of Nursing Home Neglect, Abuse