THE MAIN STREET LAWYER

July 2010, Volume 46, No. 7

Help your clients pick a nursing home 

William S. Friedlander

You know how to investigate a nursing home case and how to spot evidence of negligence—or worse. Use that experience to show your clients how to steer clear of the wrong homes, and help them make the right decision for their loved ones.

If you handle nursing home cases, your clients may have asked your advice about picking a nursing home. After all, you’ve had a firsthand look at the dark side—pressure ulcers that penetrate to the bone, sepsis born of dislodged feeding tubes, repeated fractures from unattended falls, restraints that entangle, and food that chokes—all compounded by malnourishment, dehydration, untreated depression, and chronic inattention from inadequate staffing. You don’t need to hang your shingle out for too long before you realize that these occurrences are all too common in the care of the 1.5 million elderly Americans who reside in our nation’s nursing homes.1

Recently, the Centers for Medicare and Medicaid Services (CMS) gave one in five Medicare/Medicaid-certified nursing homes—which house over a quarter of a million patients—the lowest rating (one star, out of a possible five), based on quality of care, staffing, and health inspections.2 Judged against more than 180 Medicaid-directed regulatory standards, each one-star home had an average of 14 quality-of-life or safety deficiencies in a one- or two-year period. Many of these involved actual or imminent harm to residents. In November 2009, University of California researchers released a report showing that nationwide, violations of nursing home regulations rose 8 percent from 2003 to 2008, with some states showing increases as high as 71 percent.3

And a Government Accountability Office report released in August 2009 found that for-profit homes—which account for the majority of beds in most areas—showed the worst performance. To make matters worse, facilities that rank “above average” often have the longest waiting lists, particularly for Medicare or Medicaid beds.4

If you’ve done your homework, you know that even those statistics do not offer a reliable picture of the problem. The Medicare/Medicaid star system, for example, is partly based on unaudited self-reports about staffing and quality-of-care criteria. Another star-rating component, the annual state survey required by CMS, varies widely from state to state and surveyor to surveyor in standards and reliability.5 Your own case research probably shows that reported deficiencies are only the tip of the iceberg and that substantial histories of untreated pressure ulcers, multiple falls, and other problems regularly precede these investigative findings.6

Clearly, there’s more to nursing home evaluation than meets the cautious eye of a professional litigator, much less the worried eye of an elderly person or someone concerned about finding a home for a failing family member. So how do you turn your experience and knowledge into useful advice for your clients and their loved ones?

First, take stock of what you don’t know. You’re probably not a physician, a social worker, or a case manager. Your advice cannot fully address the person’s specific medical, psychosocial, or quality-of-life needs, and you need to be clear with your client (and yourself) about those limitations. You are also, most likely, not a financial planner or even an elder law specialist, so you are not in a position to “cost out” payment strategies or pursue alternative care options, although long-term care advocates urge the exploration of alternatives to nursing home care as a first step in the planning process.7

What you can offer someone looking for a nursing home is a lawyer’s perspective on common financial, administrative, medical, and quality-of-life concerns that arise in nursing home care and some tools for evaluating how well a specific nursing home addresses them.

Coverage considerations

Before you can give informed advice on financial considerations, you need to be up to speed on Medicare and Medicaid coverage—and how the two differ. For eligible patients—people 65 or older, some disabled people under 65, and people of all ages with end-stage renal disease—Medicare covers up to 100 days of necessary skilled nursing care following a three-day minimum hospital stay.8

The first 20 Medicare days are paid in full; after that, the resident pays a daily copay, which may be covered by a client’s Medigap insurance policy, if he or she has one. Nursing home residents whose room and board are not covered by Medicare may still look to Medicare for health coverage for hospital stays, medical care, and medications.

Medicaid is a health care safety net funded by federal and state governments for people who meet resource-eligibility requirements. It pays for nursing home care as long as the resident remains income-eligible and has long-term care needs. Medicaid clients pay a monthly deductible set by state law, and covered services vary from state to state.9

Nationwide, more than two-thirds of nursing home residents receive help from Medicaid.10 So when offering advice on nursing home choices, you should be aware of relevant state Medicaid eligibility rules, including asset exhaustion requirements, income retention, and spousal impoverishment rights. You should also be familiar with state-based variations in Medicaid-covered services and be able to point your client to state agencies, advocacy organizations, or ombudsman services that handle Medicaid questions and concerns in your state.11

Even if your client’s resources are ample, it’s wise to consider a facility’s Medicaid certification at the start. For one thing, Medicaid-certified facilities are evaluated annually and must meet federal and state certification, licensing, and performance standards.12 Moreover, statistics show that most long-term nursing home residents will deplete their resources enough to meet Medicaid eligibility standards at some time during their stay, and federal law prohibits Medicaid-certified homes from evicting residents or terminating necessary services when residents become Medicaid-eligible.

On the other hand, the ability to pay privately for coverage—or coverage under Medicare’s 100-day post-hospital skilled-nursing-care benefit—may help a client gain admission to the nursing home of his or her choice, as private payments and Medicare reimbursement rates easily exceed Medicaid reimbursement rates.13

Whether your client pays privately or with public support, know what services will be covered in a nursing facility’s rate structure. Private-pay residents, in particular, should ascertain which services are included in the facility’s basic daily rate and which—for instance, therapy, medications, lab tests, and physicians’ services—are billed separately.

Your clients should also ask about rate-increase history, policies, and notification requirements. And they should understand their rights under state and federal law when it comes to the facility’s proposed financial and legal terms, such as paying a security deposit, placing funds in trust with the facility, guaranteeing financial responsibility, giving donations in return for guaranteed bed space, or receiving notice of and assistance with Medicaid eligibility.14

Admissions paperwork that includes an agreement to arbitrate grievances should be handled with extreme caution. Explain to your clients how arbitration clauses can limit their ability to get recourse for violations of care and fiduciary violations. The latter came to light recently at Maryland’s highest court, in a case that involved payment disputes, botched Medicaid applications, and claims of outright fraud.15

Some states have attempted to standardize nursing home admissions agreements to prevent such abuses. Even so, remind clients that it is always wise to have an attorney review the financial terms of any admissions agreement before signing it.16

Information about the nursing home’s administrative structure and its stability may also be important to a client’s choice. From Medicare’s Nursing Home Compare program, your client can quickly learn whether a home is a for-profit, chain, or not-for-profit operation, which often correlates with a home’s staffing levels and—as noted above—with quality of care.17 The client can check on the home’s staffing levels, stability of the current administration, and turnover; these also tend to correlate with quality of care and—as you probably know—of amenability to suit and summons if things go wrong and litigation ensues.18

Your client may be interested in the activities, governance rights, and advocacy roles of resident or family councils. Ask about the ease of family visitation, which is an easy way to keep tabs on treatment and care. Look closely at compliance with administrative regulations regarding licensing and accreditation, required postings, notices, needs-assessment and care planning, safety inspections, and money management as indicators of administrators’ concern for the residents’ rights and needs.19

Assessing quality of care

Quality of care, certainly one of the chief criteria for selecting a nursing home, is at the heart of your experience as a nursing home litigator.

You know how to scrutinize inspection reports, medical records, and staff logs for indicators of deficiencies in staffing, training, supervision, policy development, equipment, assessment, planning, and oversight. But that’s mostly after-the-fact investigation; looking for these red flags before your client signs an admissions agreement is a different matter. Here are some simple suggestions to make the process more manageable.

Consider special needs. If the person has special medical needs—for instance, respiratory therapy or a specialized dementia unit—make sure that prospective homes offer those services and have a history of compliance with the necessary certification standards. Also, make sure that certified facilities do not regularly reject appropriate patients simply for staffing convenience or cost control.20

Check the records. Using Nursing Home Compare or similar sources, look carefully at the facility’s record on key quality measures: infection control, pressure sores, weight loss, bladder control, use of restraints, mobility and daily living skills, depression, anxiety, and pain treatment. As CMS cautions, these measures are not standards of care, but they do offer a snapshot of each home in comparison to others. And they often point to problems that may show up in resident complaints, CMS investigations, and even litigation.21

Visit the facility. When you do, take along one of the many checklists available from federal, state, and advocacy sources.22 Pay particular attention to details about hiring practices; accommodation of personal needs; thoroughness of assessments and care plans, and regularity of reviews; care with continence, hydration, and nutrition; use of feeding tubes, sedation, and restraints; medication protocols; pressure ulcers and personal care; environment and activities; emergency procedures; and billing and administration.23

Look for “culture change” programs or practices. “Culture change” is a term used by nursing home researchers and advocates to describe actions taken to improve quality of care and quality of life by “de-institutionalizing services and individualizing care.”24 It grew out of the 1987 Federal Nursing Home Reform Act, which mandates that each nursing home “care for its residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident.”25 Homes that emphasize this protocol use “person-directed practices” that allow residents to make daily life choices on their own, emphasize the continuity of relationships between residents and staff, and make the care environment as homelike, intergenerational, and intimate as possible.

A CMS study offers a checklist, titled Artifacts of Culture Change, that measures a facility against culture-change criteria. This guide can be of great help in identifying quality-of-care and quality-of-life factors that are important in any nursing home setting.26

A valuable service

Your experience, knowledge, and the instincts you’ve honed as a nursing home litigator can help you offer a valuable service to your clients. Use your hard-won knowledge to help them make one of the most important decisions for themselves and their loved ones. Learn to use the tools and resources you’ve developed in litigation—along with those available through federal, state, and advocacy organizations—with greater insight and discernment.

You may not be an elder law specialist, but by drawing on your familiarity with nursing home practices and your ability to look past a facility’s outward appearance, you may help clients avoid those ugly stories of nursing home care gone awry.

William S. Friedlander practices law in Ithaca, New York. He can be reached at wsf@friedlanderlaw.com.

Notes:

  1. Ctrs. for Disease Control & Prev., FastStats: Nursing Home Care (Apr. 15, 2010),www.cdc.gov/nchs/fastats/nursingh.htm; Sarah Greene Burger et al., Nurses Involvement in Nursing Home Culture Change:Overcoming Barriers, Advancing Opportunities 7 (Spring 2009), http://tinyurl.com/2dpmstp (citing Charlene Harrington et al., NursingFacilities, Staffing, Residents, and Facility Deficiencies, 2000 through2006 (U. Cal., Sept. 2007),www.pascenter.org/documents/OSCAR2006.pdf).
  2. Medicare’s Web site offers state links and home-by-home evaluations, the starting point for any nursing home search, at Ctrs. for Medicare & Medicaid Servs., Nursing Home Compare,www.medicare.gov/nhcompare.
  3. Charlene Harrington et al., Nursing Facilities, Staffing, Residents, andFacility Deficiencies, 2003 through 2008 (U. Cal., Nov. 2009),www.pascenter.org/documents/OSCAR_complete_2009.pdf.
  4. U.S. Govt. Accountability Office, Nursing Homes: CMS’s SpecialFocus Facility Methodology Should Better Target the Most PoorlyPerforming Homes, Which Tended to Be Chain-Affiliated and For-Profit, GAO (Aug. 2009),www.aging.senate.gov/letters/gaosffreport.pdf; Jack Gillum, Analysis:Poor Ratings Persist for 1 in 5 U.S. Nursing Homes, USA Today (Jan. 28, 2010), www.usatoday.com/news/health/2010-01-28-nursing28_ST_N.htmsee also Heather Gillers et al., Crisis of Careamong State Nursing Homes, Indianapolis Star (Mar. 9, 2010),http://tinyurl.com/26fnne5.
  5. See Cynthia Rudder & Meghan Shineman, Nursing Home Oversight inNew York State: A Regional Assessment (Long Term Care Community Coalition 2006), http://nursing home411.org/documents/NYsoversight reportCRJune12.pdf.
  6. See e.g. U.S. v. NHC Health Care Corp., 163 F. Supp. 2d 1051 (W.D. Mo. 2001).
  7. See Ctrs. for Medicare & Medicaid Servs., Guide to Choosing aNursing Home 11–16 (Nov. 2008),www.medicare.gov/Publications/Pubs/pdf/02174.pdf [hereinafter CMSGuide]; Dept. Health & Hum. Servs. Admin. on Aging, EldercareLocatorwww.eldercare.gov/Eldercare.NET/Public/Home.aspx; Dept. Health & Hum. Servs., National Clearinghouse for Long-Term CareInformation (Oct. 19, 2008),www.longtermcare.gov/LTC/Main_Site/index.aspx.
  8. Medicare benefits may be discontinued if assessment reveals that the patient needs simple custodial care rather than skilled nursing care.See Chamberlain v. Leavitt, 2009 WL 385401 at *5 (N.D.N.Y. 2009).
  9. For brief overviews of the Medicare and Medicaid programs offered, see CMS Guidesupra n. 7, at 40–42, 43–45.
  10. See CMS Guidesupra n. 7, at 40.
  11. For a summary of Medicaid rights and a useful index of state Medicaid agencies and ombudsman services, see generally CMS Guidesupran. 7.
  12. For footnoted leads to federal Medicaid nursing home standards, seeCal. Advocs. for Nursing Home Reform, Nursing Home CareStandards (Nov. 12, 2008),www.canhr.org/factsheets/nh_fs/html/fs_CareStandards.html.
  13. See Cal. Advocs. for Nursing Home Reform, Nursing Home Guide,www.nursinghome guide.org/NHG/nhg_txt_home.lasso; N.Y. Dept. Health, Selecting a Nursing Home in New York State 3 (Dec. 2006),www.health.state.ny.us/facilities/nursing/select_nh/docs/select_ nh.pdf.
  14. See N.Y. Dept. Health, supra n. 13, at 30.
  15. See Addison v. Lochearn Nursing Home, LLC, 983 A.2d 138 (Md. 2009); see also Oesterle v. Atria Mgmt. Co., 2009 WL 2043492 (D. Kan. July 14, 2009); see also Moffett v. Life Care Ctrs. Am., 219 P.3d 1068 (Colo. 2009).
  16. See Cal. Advocs. for Nursing Home Reform, Nursing Home AdmissionAgreements (Feb. 16, 2010),http://canhr.org/factsheets/nh_fs/html/fs_admissionagreement.htm(noting California’s efforts to develop a standard admissions agreement and describing the common problems such an agreement was intended to address).
  17. See Ctrs. for Medicare & Medicaid Servs., supra n. 2.
  18. See Gillum, supra n. 4; Gillers, supra n. 4; see Capriotti v. BeverlyEnters. Pa., Inc., 2004 WL 3584850 (Pa. Com. Pl. June 30, 2004); seealso Dooley ex rel. Estate of Pannell v. Cap-Care of Ark., Inc., 338 F. Supp. 2d 962 (E.D. Ark. 2004); but see Howard v. Estate of Harper exrel. Harper, 947 So. 2d 854 (Miss. 2006).
  19. See Cal. Advocs. for Nursing Home Reform, Nursing Home EvaluationChecklist (Oct. 15, 2008),http://canhr.org/factsheets/nh_fs/html/fs_evalchecklist.htmsee alsoCal. Advocs. for Nursing Home Reform, supra n. 12. For a case involving inadequate respiratory services, see Morisette v. TerenceCardinal Cooke Health Care Ctr., 797 N.Y.S.2d 856 (N.Y., N.Y. Co. Sup. 2005).
  20. See e.gWagner by Wagner v. Fair Acres Geriatric Ctr., 49 F.3d 1002 (3d Cir. 1995).
  21. Ctrs. for Medicare & Medicaid Servs., Understanding Nursing HomeQuality Measures,www.medicare.gov/NHCompare/static/tabHelp.asp?active Tab=4. For an example of repeated violations in a dementia-certified facility, seeWoodstock Care Ctr. v. Thompson, 363 F.3d 583 (6th Cir. 2003); for a pattern of persisting violations relating to pressure sores, see U.S. v.NHC Health Care Corp., 163 F. Supp. 2d 1051 (W.D. Mo. 2001).
  22. For an easily printed, comprehensive checklist, see Cal. Advocs. for Nursing Home Reform, supra n. 19 (including pointed questions for use during nursing home visits); CMS Guidesupra n. 7, at 32–35; see alsoNCCNHR, A Consumer Guide to Choosing a Nursing Home,Consumer Fact Sheet (Aug. 2009), http://tinyurl.com/2ew4yah; N.Y. Dept. Health, supra n. 13, at 12–18.
  23. For patterns of resident decline involving pressure sores, diet, dehydration, and other wasting conditions, see Dooley, 338 F.Supp.2d 962; Scott v. Central Ark. Nursing Ctrs., Inc., 278 S.W.3d 587 (Ark. App. 2008), Iannotti v. Milford N. Health Care Ctr., 2008 WL 4853613 (Conn. Super. Oct. 23, 2008). Regarding staffing, see Soderstrom v.Beaumont Nursing Home, Inc., 2008 WL 5216865 (Mass. Super. Nov. 4, 2008).
  24. NCCNHR, Culture Change in Nursing Homes, Consumer Fact Sheet No. 19 (Aug. 2006),www.allhealth.org/BriefingMaterials/NCCNHRCultureChange06-909.pdf.
  25. 42 U.S.C. §1396r(b)(1)(A) (2006).
  26. Carmen S. Bowman & Karen Schoeneman, Ctrs. for Medicare & Medicaid Servs., Development of the Artifacts of Culture Change Tool(Apr. 21, 2006), www.culturechangenow.com/pdf/artifacts.pdfsee alsoNCCNHR, supra n. 24.
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