Article: Nursing Homes Routinely Mask Low Staff Levels

Via New York Times By Jordan Rau

ITHACA, N.Y. — Most nursing homes had fewer nurses and caretaking staff than they had reported to the government for years, according to new federal data, bolstering the long-held suspicions of many families that staffing levels were often inadequate.

The records for the first time reveal frequent and significant fluctuations in day-to-day staffing, with particularly large shortfalls on weekends. On the worst staffed days at an average facility, the new data show, on-duty personnel cared for nearly twice as many residents as they did when the staffing roster was fullest.

The data, analyzed by Kaiser Health News, come from daily payroll records Medicare only recently began gathering and publishing from more than 14,000 nursing homes, as required by the Affordable Care Act of 2010. Medicare previously had been rating each facility’s staffing levels based on the homes’ own unverified reports, making it possible to game the system.

The payroll records provide the strongest evidence that over the last decade, the government’s five-star rating system for nursing homes often exaggerated staffing levels and rarely identified the periods of thin staffing that were common. Medicare is now relying on the new data to evaluate staffing, but the revamped star ratings still mask the erratic levels of people working from day to day.

Stan Hugo with his wife, Donna, who is a resident at the Beechtree 
Center for Rehabilitation and Nursing in Ithaca, N.Y. Mr. Hugo 
tracks staffing levels at the skilled nursing facility.

At the Beechtree Center for Rehabilitation & Nursing here, Jay Vandemark, 47, who had a stroke last year, said he often roams the halls looking for an aide not already swamped with work when he needs help putting on his shirt.

Especially on weekends, he said, “It’s almost like a ghost town.”

Nearly 1.4 million people are cared for in skilled nursing facilities in the United States. When nursing homes are short of staff, nurses and aides scramble to deliver meals, ferry bedbound residents to the bathroom and answer calls for pain medication. Essential medical tasks such as repositioning a patient to avert bedsores can be overlooked when workers are overburdened, sometimes leading to avoidable hospitalizations.

Nursing Home Abuse Lawsuits >

“Volatility means there are gaps in care,” said David Stevenson, an associate professor of health policy at Vanderbilt University School of Medicine in Nashville, Tenn. “It’s not like the day-to-day life of nursing home residents and their needs vary substantially on a weekend and a weekday. They need to get dressed, to bathe and to eat every single day.”

David Gifford, a senior vice president at the American Health Care Association, a nursing home trade group, disagreed, saying there are legitimate reasons staffing varies. On weekends, for instance, there are fewer activities for residents and more family members around, he said.

“While staffing is important, what really matters is what the overall outcomes are,” he said.

While Medicare does not set a minimum resident-to-staff ratio, it does require the presence of a registered nurse for eight hours a day and a licensed nurse at all times.

The payroll records show that even facilities that Medicare rated positively for staffing levels on its Nursing Home Compare website, including Beechtree, were short nurses and aides on some days. On its best staffed days, Beechtree had one aide for every eight residents, while on its lowest staffed days, there was only one aide for 18 residents. Nursing levels also varied.

The Centers for Medicare & Medicaid Services, the federal agency that oversees nursing home inspections, said in a statement that it “is concerned and taking steps to address fluctuations in staffing levels” that have emerged from the new data. This month, it said it would lower ratings for nursing homes that had gone seven or more days without a registered nurse.

Beechtree’s payroll records showed similar staffing levels to those it had reported before. David Camerota, chief operating officer of Upstate Services Group, the for-profit chain that owns Beechtree, said in a statement that the facility has enough nurses and aides to properly care for its 120 residents. But, he said, like other nursing homes, Beechtree is in “a constant battle” to recruit and retain employees even as it has increased pay to be more competitive.

Mr. Camerota wrote that weekend staffing is a special challenge as employees are guaranteed every other weekend off. “This impacts our ability to have as many staff as we would really like to have,” he wrote.

New rating method is still flawed

In April, the government started using daily payroll reports to calculate average staffing ratings, replacing the old method, which relied on homes to report staffing for the two weeks before an inspection. The homes sometimes anticipated when an inspection would happen and could staff up before it.

Payroll records at Beechtree show that on its highest staffed days, it had one aide for every eight residents, but there was only one aide for 18 residents at the lowest staffing level.CreditHeather Ainsworth for The New York Times

“They get burned out and they quit,” said Adam Chandler, whose mother lived at Beachtree until her death earlier this year. “It’s been constant turmoil, and it never ends.”

Medicare’s payroll records for the nursing homes showed that there were, on average, 11 percent fewer nurses providing direct care on weekends and 8 percent fewer aides. Staffing levels fluctuated substantially during the week as well, when an aide at a typical home might have to care for as few as nine residents or as many as 14.

 

A family council forms

Beechtree actually gets its best Medicare rating in the category of staffing, with four stars. (Its inspection citations and the frequency of declines in residents’ health dragged its overall star rating down to two of five.)

To Stan Hugo, a retired math teacher whose wife, Donna, 80, lives at Beechtree, staffing levels have long seemed inadequate. In 2017, he and a handful of other residents and family members became so dissatisfied that they formed a council to scrutinize the home’s operation. Medicare requires nursing home administrators to listen to such councils’ grievances and recommendations.

Sandy Ferreira, who makes health care decisions for Effie Hamilton, a blind resident, said Ms. Hamilton broke her arm falling out of bed and has been hospitalized for dehydration and septic shock.

“Almost every problem we’ve had on the floor is one that could have been alleviated with enough and well-trained staff,” Mrs. Ferreira said.

Beechtree declined to discuss individual residents, but said it had investigated these complaints and did not find inadequate staffing on those days. Mr. Camerota also said that Medicare does not count assistants it hires to handle the simplest duties like making beds.

In recent months, Mr. Camerota said, Beechtree “has made major strides in listening to and addressing concerns related to staffing at the facility.”

Mr. Hugo agreed that Beechtree has increased daytime staffing during the week under the prodding of his council. On nights and weekends, he said, it still remained too low.

His wife has Alzheimer’s, uses a wheelchair and no longer talks. She enjoys music, and Mr. Hugo placed earphones on her head so she could listen to her favorite singers as he spoon-fed her lunch in the dining room on a recent Sunday.

As he does each day he visits, he counted each nursing assistant he saw tending residents, took a photograph of the official staffing log in the lobby and compared it to what he had observed. While he fed his wife, he noted two aides for the 40 residents on the floor — half what Medicare says is average at Beechtree.

“Weekends are terrible,” he said. While he’s regularly there overseeing his wife’s care, he wondered: “What about all these other residents? They don’t have people who come in.”

This article was produced in collaboration with Kaiser Health News, an editorially independent program of the Kaiser Family Foundation. The author is a reporter for Kaiser Health News.
A version of this article appears in print on , on Page A1 of the New York edition with the headline: Nursing Homes Routinely Mask Low Staff Levels. Order Reprints | Today’s Paper | Subscribe

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How To Spot Nursing Home Neglect Or Abuse?

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Nursing home neglect and abuse is often difficult to detect, and families should be on the lookout for common warning signs for physical, emotional and financial abuse.

Common warning signs of physical abuse are:

  • Untreated bedsores, pressure sores, wounds, cuts, bruises, or welts
  • Abnormally pale complexion
  • Bruises in a pattern that would suggest restraints
  • Excessive and sudden weight loss
  • Fleas, lice, or dirt on or in the room
  • Poor personal hygiene, unpleasant odors or other unattended health problems
  • Torn clothing or broken personal items
  • Bleeding around private parts
  • Bloody undergarments
  • Bruises around the breast/genital region
  • An unexpected look of fear from the elder when aide may be present

Common warning signs of emotional abuse are:

  • Intimidation through yelling and threats
  • Humiliation
  • Ignoring the patient
  • Isolating the patient from other residents and/or activities
  • Terrorizing the patient
  • Mocking the patient

Financial exploitation is another form of abuse. An unscrupulous caregiver may:

  • Misuse checks, accounts, or credit cards
  • Steal money, steal checks, or steal belongings
  • Forge signatures
  • Authorize withdrawals or transfer of monies
  • Steal the patient’s identity

No family is exempt from any of these possibilities. Abuse affects the rich and poor. Suffering sustained by the elderly ranges from financial, to emotional and physical. Abuse escalating to physical can result in severe infections, amputations, dehydration and, unfortunately, death. A lawsuit should be filed on behalf of your loved one to get the justice your family deserves. Compensation may cover the costs of treatment and recovery, as well as compensation for non-financial hardships such as pain and suffering.

If you suspect elder abuse of any kind speak up and demand answers of those in charge.

Feel free to contact me for more information or inquire about a lawsuit.

Sincerely,

Brian

Bedsore Lawsuits: FAQs

WHEN IT COMES TO BEDSORES, PRESSURE SORES, DECUBITUS ULCERS IT’S OFTEN HELPFUL TO READ WHAT OTHERS HAVE ASKED. YOU MAY BE ABLE TO BENEFIT FROM SOME OF OUR FREQUENTLY ASKED QUESTIONS BELOW.

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Worst States If You’re Caring For An Aging Parent

Via FA-Magazine  

#7 In Survey New York Stateimage.png

Some states make it harder for those caring for an aging parent, according to a new survey. 

Caring.com conducted a national survey to determine which states offer the best overall cost of living, and accessibility to senior support programs and resources for caregivers. 

While some states were praised for providing an affordable and helpful environment for caregivers, other states inevitable ended up at the bottom of the list.

“It hasn’t always been so expensive, but the cost of caring for our parents is so out of control now that it has the capacity to actually bankrupt families,” Jim Miller, a senior advocate and author of SavvySenior.org, said in the report. “I think that’s why it’s so important to consider these costs far in advance of needing to provide care so you’re prepared instead of panicked.”

These 10 states, in descending order, were deemed the most expensive for caregivers by Caring.com:

10. Maine

While the state is expensive for seniors, the availability of senior care support and services ranked 13th overall. The median cost for a home health aide was $4,500 more than the national average. Nursing home expenses were $24,00 more than the national average, according to caring.com.

 

9. New Hampshire

The state ranked 44th for cost of living. Costs for a nursing home stay for a year were over $100,000, well above the national average. The state did rank well for offering accessible senior programs and caregiver resources.

8. Delaware

For your aging parent to live in a nursing home in Delaware, expect to pay the median price of $127,750. The state ranked 28th in the survey for senior and caregiver programs and support.

 

7. New York

Earning a good rank for senior support and services, the state offers numerous resources for caregivers and seniors. While the costs for a home health aide and assisted living are competitive, the median for a nursing home is well above the national average by over $40,000.

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How to Talk About Moving to a Retirement Home: ‘It’s a Journey’

Having a conversation about moving — whether it’s with a relative,
even a spouse — brings up lots of anxiety. Here’s how to go about it.

New Federal Law Helps To Prevent Elder Abuse

A new federal law is designed to address the growing problem of elder abuse. The law supports efforts to better understand, prevent, and combat both financial and physical elder abuse.

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The prevalence of elder abuse is hard to calculate because it is underreported, but according to the National Council on Aging, approximately 1 in 10 Americans age 60 or older have experienced some form of elder abuse. In 2011, a MetLife study estimated that older Americans are losing $2.9 billion annually to elder financial abuse.

The bipartisan Elder Abuse Prevention and Prosecution Act of 2017 authorizes the Department of Justice (DOJ) to take steps to combat elder abuse. Under the new law, the federal government must do the following:

  • Create an elder justice coordinator position in federal judicial districts, at the DOJ, and at the Federal Trade Commission
  • Implement comprehensive training on elder abuse for Federal Bureau of Investigation agents
  • Operate a resource group to assist prosecutors in pursuing elder abuse cases

The law requires the DOJ to collect data on elder abuse and investigations as well as provide training and support to states to fight elder abuse. The law specifically targets email fraud by expanding the definition of telemarketing fraud to include email fraud. Prohibited actions include email solicitations for investment for financial profit, participation in a business opportunity, or commitment to a loan.

The law also addresses flaws in the guardianship system that have led to elder abuse. The law enables the government to provide demonstration grants to states’ highest courts to assess adult guardianship and conservatorship proceedings and implement changes.

“Exploiting and defrauding seniors is cowardly, and these crimes should be addressed as the reprehensible acts they are,” said Senator Chuck Grassley (R-Iowa), a co-sponsor of the legislation, adding that the legislation “sends a clear signal from Congress that combating elder abuse and exploitation should be top priority for law enforcement.”

For more information about the law, click here and here.

Should you sign that Nursing Home Admissions Agreement you were given?

elder law news
Read the agreement carefully before signing.
Nursing Home Agreements can be complicated and confusing

Admitting a loved one to a nursing home can be very stressful. In addition to dealing with a sick family member and managing all the details involved with the move, you must decide whether to sign all the papers the nursing home is giving you. You don’t need to decide at the moment or alone. Nursing home admission agreements can be complicated and confusing, so what do you do?

It is important not to rush, but rather to read. If possible, have your attorney review the agreement before signing it. Read the agreement carefully because it could contain illegal or misleading provisions. Try not to sign the agreement until after the resident has moved into the facility. Once a resident has moved in, you will have much more leverage. But even if you have to sign the agreement before the resident moves in, you should still request that the nursing home delete any illegal or unfair terms.

Two items commonly found in these agreements that you need to pay close attention to are a requirement that you be liable for the resident’s expenses and a binding arbitration agreement.

The Responsible party
A nursing home may try to get you to sign the agreement as the “responsible party.” It is very important that you do not agree to this. Nursing homes are prohibited from requiring third parties to guarantee payment of nursing home bills, but many try to get family members to voluntarily agree to pay the bills.

If possible, the resident should sign the agreement him- or herself. If the resident is incapacitated, you may sign the agreement, but be clear you are signing as the resident’s agent. Cross out the words ‘responsible party’. Don’t think because it is printed the whole document will need to be re-done. Signing the agreement as a responsible party may obligate you to pay the nursing home if the nursing resident is unable to. Look over the agreement for the term “responsible party,” “guarantor,” “financial agent,” or anything similar. Before signing, cross out any terms that indicate you will be responsible for payment and clearly indicate that you are only agreeing to use the resident’s income and resources to pay.

Arbitration provision
Many nursing home admission agreements contain a provision stating that all disputes regarding the resident’s care will be decided through arbitration. An arbitration provision is not illegal, but by signing it, you are giving up your right to go to court to resolve a dispute with the facility. The nursing home cannot require you to sign an arbitration provision, and you should cross out the arbitration language before signing.

Other provisions
The following are some other provisions to look out for in a nursing home admission agreement.

Private pay requirement. It is illegal for the nursing home to require a Medicare or Medicaid recipient to pay the private rate for a period of time. The nursing home also cannot require a resident to affirm that he or she is not eligible for Medicare or Medicaid.
Eviction procedures. It is illegal for the nursing home to authorize eviction for any reason other than the following: the nursing home cannot meet the resident’s needs, the resident’s heath has improved, the resident’s presence is endangering other residents, the resident has not paid, or the nursing home is ceasing operations.
Waiver of rights. Any provision that waives the nursing home’s liability for lost or stolen personal items is illegal. It is also illegal for the nursing home to waive liability for the resident’s health.

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For more information regarding this article feel free to contact me.

Regards, Brian
Brian A. Raphan, P.C.
7 Penn Plaza   |   7th Ave/31st Street   |   New York, NY 10001
212-268-8200  braphan@raphanlaw.com
http://www.raphanlaw.com

Ooops! Did you choose the wrong executor?

You finally got around to making your Will. You deserve a sigh of relief. But did you choose the right executor? Or have you burdened an unqualified or unwilling relative and put your Will at risk to be contested?

Generally speaking, the first person that comes to mind to be one’s executor is often an adult child or other family member, followed perhaps by a close friend. These individuals may be honored that you asked them, and will often accept this important duty. Some may even accept the duty despite not wanting the burden, just so they do not insult you.

Your choice of executor may be an emotional one, but also should be chosen based upon what is best for your estate, probate, and your needs. Choosing the executor of your estate is not a task to take lightly. An executor is the person responsible for managing the administration of a deceased individual’s estate. The time and effort involved will vary with the size of the estate. Even the executor of a small estate will have important duties that must be performed correctly, or the executor may be personally liable to the estate or the beneficiaries. One of the many jobs of the executor is to take an accurate inventory of the deceased individual’s assets. This includes making a list of all bank, brokerage and retirement accounts, insurance policies, real property, and any other assets the deceased owned. An inventory of personal effects, antiques or other valuables must be tabulated as well. A list of the estate’s inventory must ultimately be presented to the probate court for review.

This can be a very time-consuming task, and it may mean going through the deceased individual’s personal data or paperwork for information, interviewing heirs, or checking ownership documents at the local town hall. The information presented to the court is expected to be accurate and complete, so that the beneficiaries receive their inheritance on a timely basis. Of course, the executor must probate the deceased person’s Last Will, which may involve locating and notifying the person’s heirs. As if the demands of the probate process aren’t enough work, creditors must be paid, and final income tax returns must be filed. If the estate is large enough, a state and federal estate tax return may be required as well. Once this is complete, distributions to the estate’s beneficiaries must be calculated and dispersed. Of course, if the deceased person’s Last Will is contested, the executor must oversee this process as well. This may put an additional wedge between friends and/or family members. Further, it can add months and perhaps even years to the process, as well as some unwanted stress for the executor.

Tax laws and state and federal estate tax exclusion rates may be different than when the Will was written. If the surviving spouse plans to file for estate tax portability, an estate tax return may need to be filed even if no tax is owed.

Feel free to call me for an opinion on your choice of executor. If you prefer, I may also act as your executor if you do not have a qualified person in mind. This may remove the potential burden it can place on others and offer many efficiencies and time saving as well.

To learn more about the duties of an executor click here>

Regards,

Brian

New Protections for Nursing Home Residents

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New Obama-era rules designed to give nursing home residents more control of their care are gradually going into effect. The rules give residents more options regarding meals and visitation as well as make changes to discharge and grievance procedures.

The Centers for Medicare and Medicaid finalized the rules — the first comprehensive update to nursing home regulations since 1991 — in November 2016. The first group of new rules took effect in November; the rest will be phased in over the next two years.

Here are some of the new rules now in effect:

  • Visitors. The new rules allow residents to have visitors of the resident’s choosing and at the time the resident wants, meaning the facility cannot impose visiting hours. There are also rules about who must have immediate access to a resident, including a resident’s representative. For more information, click here.
  • Meals. Nursing homes must make meals and snacks available when residents want to eat, not just at designated meal times.
  • Roommates. Residents can choose their roommate as long as both parties agree.
  • Grievances. Each nursing home must designate a grievance official whose job it is to make sure grievances are properly resolved. In addition, residents must be free from the fear of discrimination for filing a grievance. The nursing home also has to put grievance decisions in writing. For more information, click here.
  • Transfer and Discharge. The new rules require more documentation from a resident’s physician before the nursing home can transfer or discharge a resident based on an inability to meet the resident’s needs. The nursing home also cannot discharge a patient for nonpayment if Medicaid is considering a payment claim. For more information, click here.

CMS also enacted a rule forbidding nursing homes from entering into binding arbitration agreements with residents or their representatives before a dispute arises.  However,a nursing home association sued to block the new rule and a U.S. district court has granted an injunction temporarily preventing CMS from implementing it.  The Trump Administration is reportedly planning to lift this ban on nursing home arbitration clauses.

In November 2017, rules regarding facility assessment, psychotropic drugs and medication review, and care plans, among others, will go into effect. The final set of regulations covering infection control and ethics programs will take effect in November 2019.

To read the rules, click here.

A Medicaid Applicant’s Purchase of Life Insurance Policy Is Transfer for Less Than Market Value

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An Illinois appeals court rules that a Medicaid applicant’s purchase of a life insurance policy was a transfer for less than fair market value because the applicant did not receive any benefit from the policy. Moore v. State of Illinois (Ill. App. Ct., 4th Dist., No. 4-16-0414, April 11, 2017).

Nursing home resident Elda Buckley applied for Medicaid. On the same day, she purchased a whole life insurance policy for $15,000 that named Christine Moore as the beneficiary. The state approved Ms. Buckley’s Medicaid application, but it determined that the purchase of the life insurance policy was a transfer for less than fair market value and imposed a penalty period.

Ms. Buckley appealed, arguing that she purchased the life insurance policy for fair market value, so the transfer should not be subject to a penalty period. The state and the trial court affirmed the penalty period. Ms. Buckley appealed.

The Illinois Court of Appeal, 4th District, affirms, holding that the purchase of the life insurance policy was a transfer for less than fair market value because Ms. Buckley did not receive the benefit of the policy. According to the court, the “apparent purpose of [Ms.] Buckley’s purchase of the insurance policy, of which she would receive none of the proceeds, was to shelter assets from Medicaid while ensuring [Ms.] Moore received the benefits of her assets.”

For the full text of this decision, go to: http://www.illinoiscourts.gov/Opinions/AppellateCourt/2017/4thDistrict/4160414.pdf

 

READ THE TOP 8 MEDICAID PLANNING MISTAKES HERE>

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