Non-Profit Long-Term Care Safer than For-Profit

A Canadian study reported by McKnight's concludes that for-profit long-term care facilities have significantly higher rates of mortality and hospital admissions than their not-for-profit counterparts. The study noted that while there is significant variance in how long-term care faciltities are owned and operated, more than half of facilities in Canada, the United States, and the United Kingdom are managed by for-profit institutions, with the greatest variance being among not-for-profit facilities, which can be managed by private (e.g., religious or lay) or public (e.g, municipal, provincial, or federal) corporations.

According to McKnights, the study,  published in the Journal of Post-Acute and Long-Term Care Medicine  examined admissions at 384 for-profit and 256 not-for-profit long-term care facilities in Ontario, Canada, between January 2010 and March 2012. One year after admission, the for-profit facilities showed an overall mortality rate of 207.5 residents per 1,000 person-years, compared to a rate of 184 for not-for-profit facilities. The hospitalization rate for for-profit facilities at the one year mark was 462.4 per 1,000 person-years, while the rate for not-for-profit facilities was 358.0.

Lead researcher Peter Tanuseputro, M.D., wrote in discussing the results:

“We have shown that residents in for-profit homes consistently and robustly experience higher mortality and hospitalization rates. This occurred in an environment with common funding mechanisms, and a centralized system that leads to largely similar residents being accepted in both types of homes. It has been hypothesized that differences in outcomes may be related to reinvestments that not-for-profit facilities make into patient care that otherwise would be consumed as profit in for-profit facilities.” 

Researchers said the differences could also be due to not-for-profit facilities being more closely associated with acute care facilities, the level of a facility's ties to the community, differences in capital funding and whether a facility is associated with a chain.

The study confirmed the findings of a previous 2009 survey,
which determined that "not-for-profit nursing homes deliver higher quality care than do for-profit nursing homes."  This earlier study focused on quality citations, staffing levels, and incidence of certain adverse health events, such as prevalence of low pressure ulcers, rather than mortality rates and hospitalizations. 

To read the McKnight's article, go here.

To read the full study, go here.

No Increase in Social Security Benefits Next Year

For just the third time in 40 years, millions of Social Security recipients, disabled veterans and federal retirees can expect no increase in benefits next year.  By law, the annual cost-of-living adjustment, "COLA," is based on a government measure of inflation. 

The government is scheduled to announce the COLA — or lack of one — on Thursday, when it releases the Consumer Price Index for September. Inflation has been so low this year that economists say there is little chance the September numbers will produce a benefit increase for next year. Prices actually have dropped from a year ago, according to the inflation measure used for the COLA.

Congress enacted automatic increases for Social Security beneficiaries in 1975, when inflation was high and there was a lot of pressure to regularly raise benefits. Since then, increases have averaged 4 percent a year.  Only twice before, in 2010 and 2011, have there been no increases. 

Almost 60 million retirees, disabled workers, spouses and children get Social Security benefits. The average monthly payment is $1,224.  The COLA also affects benefits for about 4 million disabled veterans, 2.5 million federal retirees and their survivors, and more than 8 million people who get Supplemental Security Income, the disability program for the poor. Many people who get SSI also receive Social Security. 

In all, the COLA affects payments to more than 70 million Americans, more than one-fifth of the nation's population. 

Medicare premiums, however, will increase.

Good Care Is the Best Medicine for Alzheimer's

Lou-Ellen Barkan, President and CEO of the New York City Chapter of the Alzheimer’s Association, writing in the Huffington Post Blog, makes a very poignant observation: "in the absence of an effective therapy for [Alzheimer's Disease], effective care remains the best therapy."

She continues:

And providing quality care has never been more important. Today, Alzheimer's disease is the sixth leading cause of death in the United States and the only cause of death among the top 10 that cannot be prevented, cured, or even slowed. Right now, 5.3 million Americans have this deadly disease - more than a quarter of a million right here in New York City. By 2030, without treatments or a cure, nationwide, this number will skyrocket to 13.8 million.

Worldwide, top researchers, scientists, and medical professionals at renowned hospitals, universities, research centers, and pharmaceutical companies are working day-in and day-out to discover the causes, to develop effective treatments, and to find a cure for Alzheimer's and related dementias. Whether they are investigating beta-amyloid plaques, tau protein tangles, genetics, the effect of environment or lifestyle, their dedication is unparalleled. 

And while great strides have been made over the past decade in diagnostics - allowing us to get help earlier to those who need it most - Alzheimer's research remains poorly funded in comparison to other diseases with far fewer patients. For instance, total funding allocated by the National Institutes of Health (NIH) for HIV/AIDS research dwarfed the funding for Alzheimer's in 2014 (almost $2.978 billion vs. $562 million), yet almost five times as many Americans today are living with Alzheimer's than HIV (1.1 million). In the absence of an effective therapy, our focus MUST be on care. 

For more than 30 years the Alzheimer's Organization, nationally, and through Local Chapters like the one headed by Ms. Barkan, have provided compassionate care and life-saving support for hundreds of thousands of  with dementia and their caregivers.  Among these is the groundbreaking wanderer's safety program developed by the Mew York Chapter's own Jed Levine in the early 1990s, which became one of the prototypes for the nationwide MedicAlert® Foundation + Alzheimer's Association Safe Return® program.

Seniors, their families, and caregivers can support and implement these caregiving efforts through good financial and estate planning.   

Nursing Home Resident Disqualified for Transfer of Assets Eligible for Undue Hardship Exception

A New York appeals court recently held that a nursing home is  eligible for the undue hardship exception to a Medicaid penalty period, even though the home had not filed to, or threatened to evict her, because she was insolvent and unable to recover the assets, and because no other nursing home would accept her. Matter of Tarrytown Hall Care Center v. McGuire (N.Y. Sup. Ct., App. Div., 2nd Dept., No. 2849/12, April 16, 2014).

Margaret Traino lived at Tarrytown Hall Care Center from June 2008 until her death in April 2011. She was insolvent and subject to a Medicaid penalty period due to a transfer of assets for less than fair market value. The nursing home applied to the state to receive Medicaid reimbursement for the penalty period under the undue hardship exception.

The state denied the nursing home's application, ruling that the facility failed to show that Ms. Traino was unable to receive appropriate medical care without Medicaid because it did not attempt to evict Ms. Traino. The nursing home appealed.

The New York Supreme Court, Appellate Division, set aside the state's decision, holding that there is no requirement that a nursing home commence an eviction proceeding in order to prove undue hardship. According to the court, the nursing home showed that Ms. Traino "was unable to obtain appropriate medical care without the provision of Medicaid by offering proof that the decedent was insolvent and unable to recover transferred assets, and that no nursing facility which could provide her with the necessary level of care would accept her."

For the full text of this decision, go here.

Nursing Home Residents Twice as Likely to Suffer Fractures

A Canadian survey has revealed that older adults living in long-term care facilities are more than twice as likely as their peers living at home to suffer a fracture.  New guidelines endorsed by the Scientific Advisory Council of Osteoporosis Canada provide guidelines designed to reduce the risk.  The guidelines are similar to those those made by the Society for Post-Acute and Long-Term Care Medicine in the U.S., and those for residential care facilities in Australia.

Go here to read the original article in The Hospitalist.

The "Residents' Bill of Rights" is NOT the Residents'-- Federal Nursing Home Act Creates NO Private Causes of Action

A Federal District Court has ruled that the Federal Nursing Home Reform Act, which among other things requires the provision of certain services to each resident, does not create a private cause of action.  The Act is most widely known for creating the Residents' Bill of Rights, but apparently, the right to seek redress for injury or loss resulting from the failure of a nursing home to enforce these rights is not among them.

The Plaintiff, Joanne Fiers' filed a claim after the death of her brother, Richard Bendel, while he was a resident at Lakeview Health Center in West Salem, Wisconsin. Bendel, suffered from severe dementia and was a known elopement risk; he therefore required increased supervision.  Bendell left the facility unattended, fell and suffered injuries that led to his death in February 2014.  A certified nursing assistant watched Bendel walking toward one of the facilities exits, but failed to do anything to prevent his leaving.  Two other certified nursing assistants allegedly ignored an audible door alarm as Bendel exited the facility. After he exited, Bendel walked across a roadway, tripped on a curb, and fell, sustaining critical injuries from which he would succumb four days later.  

Several days later, the Wisconsin Department of Health and Human Services investigated the "elopement incident."  The facility was cited with an "Immediate Jeapardy Violation."  

In addition to seeking compensatory and punitive damages for pain and suffering as a result of the nursing home's negligence, Fiers also alleged that Lakeview violated Bendel's resident rights under Section 1983, rights set forth in the  Federal Nursing Home Reform Act (which includes but is not limited to the Residents' Bill of Rights).

The U.S. District Court for the Western District of Wisconsin ruled Section 1983 does not create a right of redress because FNHRA does not create private, enforceable rights for residents, and further that Fiers' complaint failed to identify specifically the rights that Lakeview violated. In order to allege a deprivation of rights under the FNHRA, the court ruled that Fiers was required to show that FNHRA was meant to benefit residents in a way that was not  “vague and amorphous."  No penumbra of a right to adequate health care, or a logical extension of rights and remedies, is countenanced by the court's opinion.

The Act, the court explained, was written to describe what a nursing home has to do to receive government funding, not what rights it is required to provide residents. Apparently the "Residents' Bill of Rights," would have more aptly been called, the "Nursing Homes' Obligations For Federal Funding Without Regard to Residents' Rights, Privileges, or Redress."  Yes, that is much clearer.  

The court granted Lakeview's motion to dismiss Fiers'  Section 1983 complaint.

The Plaintiff will, of course, continue to pursue her claims for negligence against the facility, but will have to do so in state, rather than federal court. In some states, citations against a nursing home for violating standards of care are not admissible in court.        

To read the court's opinion, go here.

To read the McKnight's article about the case, go here.

California Elder Abuse Law Protects Only Residents

A California appeals court has ruled that an 85-year-old man is not a protected elder under the state’s financial elder abuse law because he does not reside in California. Galt v. Wells Fargo Bank, N.A., (Cal. Ct. App., 2^nd Dist., No. B261792, Sept. 21, 2015).

Randolph Galt, who is 85 years old, lives in Australia and Washington State. Mr. Galt is one of the income beneficiaries of a trust established by his grandfather in California. Wells Fargo Bank is the trustee. After Mr. Galt delegated investment decisions for the trust to a new investor, the investor was not able to make changes to the trust and the value fell from $26 million to $13 million.

Mr. Galt sued the bank for financial elder abuse under a California state law, arguing that the bank intentionally refused to allow the new investor to make decisions for the trust. The trial court ruled that Mr. Galt did not have standing to pursue the claim because he did not meet the definition of "elder" under the state law. The state law defines an "elder" as anyone 65 years of age or older who is residing in the state. Mr. Galt appealed.

The California Court of Appeals affirmed, holding that Mr. Galt does not have standing to pursue a financial elder abuse claim under state law. According to the court, "by his own admission, [Mr.] Galt does not reside in this state; consequently, under the plain meaning of the statute, he is not an elder."

For the full text of this decision, go here.

Senators Seek To Ban Arbitration Clauses in Nursing Home Admission Agreements

McKight's reports that a group of senators urged the Centers for Medicare & Medicaid Services (CMS) to ban arbitration clauses inserted into nursing home admission contracts, because they do not adequately protect residents' rights.

The letter, signed by 34 Democrats including lead signer Sen. Al Franken (D-MN), said recent efforts by CMS to improve resident awareness of arbitration clauses are “well-intentioned,” but ultimately complicate any future disputes and fail to improve safety. Language aimed at improving resident awareness of the clauses was included in July's proposed rule for long-term care facilities.

The senators recommended CMS prohibit the use of binding pre-dispute arbitration clauses in nursing home contracts in order to “ensure that residents and their families are not deprived of their rights.”

“All too often, only after a resident has suffered an injury or death, do families truly understand the impact of the arbitration agreement they have already signed,” the letter states.  

The letter stresses that nursing home residents and their families should only enter into arbitration agreements after an incident has occurred, allowing them to consider all of their legal rights.

Clif Porter, senior vice president of government affairs and public policy at the American Health Care Association, said his organization disagrees with the views expressed in the senators' letter.

“We believe this is a matter Congress has already addressed through the Federal Arbitration Act (FAA), and rulemaking on this issue is unnecessary,” Porter wrote in an email to Bloomberg BNA.

To read an excellent article from Oklahoma Watch, regarding these clauses, go here.  The article includes a copy of such an agreement with what some believe are onerous arbitration clauses.

To read an excellent position paper regarding arbitration clauses in nursing home admission agreements from the California Advocates for Nursing Home Reform (CANHR) which deconstructs the arguments supporting the clauses, go here. 

Habits Are Hard to Break: Nursing Homes Habitually Violate Federal Standards Year After Year

Coalition for Quality Care (CQC), along with Coalition member Voices for Quality Care, have conducted a new analysis of federal inspection records of nursing homes collected by the Center for Medicare and Medicaid Services (CMS).  Their analysis found that 44% of nursing homes were permitted to continue to take in new residents and receive public funds even after having repeat violations of the same quality of care standards three years in a row.  The analysis used historical inspection data to identify nursing homes that habitually violated the same minimum federal standards year after year.  Richard Mollot, President of CQC, said, "Unfortunately, this analysis confirms our collective experiences with nursing homes across the country.  Far too many people live in facilities where abuse and neglect continue year after year, with little or no effective intervention by regulators."

“We hope that state leaders, regulators and attorneys general, as well as CMS, will use these data to identify and address persistent failures to protect nursing home residents, said Mollot. “Problems should not be allowed to persist and fester.  The fact that so many nursing homes have the same quality of care deficiencies year after year should be a wake-up call to everyone concerned about the safety of nursing home residents, no matter the use of public funds on services that are worthless or harmful.”

For more information, including the data analyses for each state (listing nursing homes with three-year repeat deficiencies), go here.

To read CQC's press release, go here.

Man Can't Challenge Discharge of Brother's Debt for Mom's Care under Filial Responsibility Law

A U.S. district court has affirmed a bankruptcy court's decision that a man cannot prevent the discharge of his brother's debt owed to their mother's assisted living facility under Pennsylvania's filial responsibility law because the man was not a creditor of his brother. In re: Skinner (U.S. Dist. Ct., E.D. Pa., No. 14-6697, May 27, 2015).

Dorothy Skinner lived in an assisted living facility until she was evicted for non-payment. The facility sued Ms. Skinner's sons, Thomas and William, under Pennsylvania's filial responsibility law. The court entered a default judgment against Thomas for $32,224.56. Thomas filed for bankruptcy and sought to discharge the debt.

William filed a claim in the bankruptcy court, arguing that Thomas's debt was non-dischargeable because it resulted from fraud and embezzlement. William argued that Thomas used their mother's assets for his personal expenses, so if William was liable to the assisted living facility, he was entitled to be reimbursed by Thomas.  A U.S. bankruptcy court dismissed the claim, holding that William did not have standing because he was not a creditor of the debtor.

The U.S. District Court for the Eastern District of Pennsylvania affirmed the bankruptcy court's decision, holding that William is not a creditor of Thomas. According to the court, Pennsylvania's filial support law does not provide for contribution or reimbursement, so it does not give William a claim against Thomas.

For the full text of this decision, go here.

For a prior article about this case, go here.

To read more about filial responsibility, go here, here, here, here, and here.