By Kim Valentine and Anna M. Bruty, Valentine Law Group, APC, The Gavel, Summer 2014, pp. 8-10
In 2009, men and women over the age of 65 accounted for 12% of the U.S. population. That translates into one out of every eight US citizens. Aging Statistics, Department of Health & Human Services, https://www.aoa.gov/aging_statistics/ (May 23, 2014). In the next twenty years, The Department of Health and Human Services Administration on Aging projects that number to double. (Id.) With this boom in age longevity, more and more Americans will find themselves in need of nursing home services. As sons or daughters, we would like to think that we can prevent our parents from experiencing any physical or mental harm at the hands of others. As lawyers, we would like to think that we will protect our senior population from the tragedy of elderly abuse. But imagine this – your very healthy and vibrant mother or father trips over a rug fracturing their hip ultimately landing him or her in the hospital. That is when you receive a call. A call from the hospital discharge planner stating you need to find a facility for your parent. You may think you have days, but in most circumstances you would be wrong. Instead you will be given just a few short hours to find a nursing facility in which to place your beloved family member for the duration of their recovery. What you do in those next few hours is imperative to ensuring your mom or dad receives the quality of care they need to properly recover. As the population ages, the ability to find a proper nursing home becomes increasingly important to us on both a personal level for our loved ones, and a professional level for our clients.
Who Can You Trust?
Many people in this situation ask the hospital discharge planner for recommendations, while others seek out placement agencies for assistance if time permits. The common question posed to both doctors and agencies alike is: “What would you do if they were your parent?” However, the motivations behind these recommendations are unknown. What is known is some prestigious hospitals, as well as placement agencies, have very short lists of recommended nursing homes and many of these recommendations only received a one out of five star rating from the Centers for Medicare and Medicaid Services (“CMS”), as further explained below. As lawyers we instinctively rely not on what someone said, but rather only on what the evidence proves. Finding the proper nursing home care requires this same instinctive thought process.
What Resources Can You Trust?
Although very little comprehensive and reliable information regarding the quality of nursing homes exists, one helpful tool is the CMS Nursing Home Compare website at https://www.medicare.gov/nursinghomecompare/search.html. In 2008, CMS enhanced its Nursing Home Compare website to include quality ratings for all nursing homes which participate in Medicare or Medicaid programs. Design for Nursing Home Compare Five-Star Quality Rating System: A Technical User’s Guide, Centers for Medicare & Medicaid Services, (2012). The site uses a five-star rating system for each nursing home. One star is the lowest rating a facility can receive, while five stars is best rating that can be obtained. (Id.) This type of rating system allows visitors to easily identify the distinction between high and low performing nursing homes. (See Id.) After you choose a specific nursing home to further investigate you will see that specific facility’s “Overall” star-rating. The “Overall” rating is based upon each facility’s performance within three different measures: 1) Health Inspections, 2) Staffing, and 3) Quality Measures. (Id.) The very first, and obvious suggestion is do not send a loved one to facilities with a one-star “Overall” rating if possible.
The first subsection of the “Overall” rating to further examine is the “Health Inspections” rating. The “Health Inspection” rating afforded to each facility is based upon information gathered by people who visit the facilities and conduct a standard survey process to determine whether Medicare’s minimum quality requirements are met. Five-Star Quality Rating System, Centers for Medicare & Medicaid Services www.cms.gov (March 2013). Additionally, you will see the list of deficiencies received by the specific facility. (Id.) Deficiencies are findings by the State Department of Health Services that a facility failed to meet one or more Federal health requirements during a health inspection or complaint inspection. (Id.) This list will aid you in your understanding and determination by providing you with insight regarding the specific weaknesses of a particular facility.
The next component of the “Overall” rating further investigate is the “Staffing” rating. Information contained within this subcategory is of particular importance as studies have found a direct correlation between nursing home staffing levels, staffing ability, and resident outcomes. Harrington, Charlene et al, Nurse Staffing Levels and Medicaid Reimbursement Rates in Nursing Facilities www.ncbi.nlm.nih.gov/pmc/articles/PMC1955251/ (2007). There is a proven associate between higher staffing levels and improved quality of care. (Bostick, Systematic Review of Studies of Staffing and Quality in Nursing Homes. www.ncbi.nlm.nih.gov/pubmed/16843237 (2006). Facilities are required by Medicare to input patient information to a centralized database. Design for Nursing Home Compare Five-Star Quality Rating System: A Technical User’s Guide, Centers for Medicare & Medicaid Services, (2012). From that data numbers are generated which reflect the average amount of staffing hours, particularly nursing hours, provided to each patient each day. (Id.) Pursuant to California Health and Safety Code, 3.2 nursing hours per patient per day is the statutory minimum which skilled nursing facilities are required to maintain. California Health & Safety Code §1276.65 Nevertheless, keep in mind that good care does not typically happen at facilities providing an average 3.2 daily nursing hours to each patient. Harrington, Charlene et al, Nurse Staffing Levels and Medicaid Reimbursement Rates in Nursing Facilities www.ncbi.nlm.nih.gov/pmc/articles/PMC1955251/ (2007) at 8. A study done by the Centers for Medicare and Medicaid Services found that each skilled nursing facility should dedicate at least 4.1 nursing hours per patient per day to prevent harm or jeopardy to long stay residents. (Id.) With all this in mind, attempt to choose a facility with the highest staffing number possible.
The last star-rating to explore further is the “Quality Measures” rating. There are 18 Quality Measures which can be found on the Nursing Home Compare website. Design for Nursing Home Compare Five-Star Quality Rating System: A Technical User’s Guide, Centers for Medicare & Medicaid Services, (2012) at 10. Quality Measures are indicators of how well a nursing home provides care to its residents. (Id.) However, the “Quality Measure” star-rating is based on the facility’s performance of only nine of those 18 Quality Measures. (Id.) The percentage of high risk residents with pressure sores and the percentage of residents experiencing one or more falls with major injury are two examples of the nine measures making up the basis for the “Quality Measure” rating earned by the facility. (Id.) The nine Quality Measures that make up the basis of the “Quality Measures” star-rating were chosen due to their inherent validity and reliability, the extent to which the measure is under the facility’s control, statistical performance and importance. (Id.) Use this to guide you in your determination of the proper facility by selecting facilities with higher “Quality Measure” star-ratings.
Go to the Facility, Look at the “2567.”
The information available on the Nursing Home Compare website is just the tip of the iceberg of information one should know when choosing a nursing facility, and if time permits always attempt to visit the facility. The obvious reason for such visit is to personally inspect the conditions and quality of the facility. Additionally, keep in mind a skilled nursing facility is required by the Patient Protection and Affordable Care Act to have available for review a “Statement of Deficiencies” and the accompanying “Plan of Correction,” collectively referred to as the “2567.” PPACA Pub. L. 111-148, 124 Stat. 119 §6103(c)(2)(V) The “2567” is a Federal form each State must use to document health inspections or surveys. Washington State Department of Social Health Services Aging and Long-Term Support Administration www.altsa.dshs.wa.gov/professional/nh/documents/definitions.pdf The form is divided into two parts. The first section is “The Statement of Deficiencies” which is completed by the State’s Department of Health Services and lists deficiencies, if any, found during the surveys. (Id.) The second section is “The Plan of Correction,” which the nursing home completes by detailing the action the facility has taken to correct the conduct which led to the deficiencies cited. (Id.) In sum, pay particular attention to the “2567” as it will have a factual summary of each of the facility’s regulatory violations, the accompanying facts, and the facility’s resolution for such deficiency. (See Id.) If you do not see the “2567” posted, ask to see a copy because oftentimes the most recent “2567” is only attainable through the facility. You have a right to access this information and do not let the facility persuade you otherwise. PPACA §6103(c)(2)(V)
Do Not Sign an Arbitration Agreement
At this point you have chosen a facility and hopefully your diligent research resulted in choosing the best facility for your loved one or client. After making your choice typically the facility will present the resident or their representative with an overwhelming stack of papers. Buried somewhere within that pile of papers is an arbitration agreement. It should go without saying, in the unfortunate cases of elder abuse, it becomes of the utmost importance that the resident and/or the resident’s representatives do not sign these. Unlike a doctor’s office, under California statute, signing an arbitration agreement cannot be a precondition for admission to the facility. (California Health & Safety Code §1599.81(a))
Choose Your Attending Physician.
When elders are admitted to a skilled nursing facility they may be assigned an “attending physician.” Oftentimes, elders and their family assume the attending physician assigned is an employee of the facility, but usually they are not. Typically the assigned attending physicians of skilled nursing homes work on a revolving basis, and each has hundreds of nursing home patients. See Cato, Alan M.D. Why Nursing Homes Need More Doctors On Site https://www.kevinmd.com/blog/2011/10/nursing-homes-doctors-site.html (October 19, 2011). In practical application, often the attending physician rarely physically assesses the patient. (Id.) Instead, it is the practice of many attending physicians to provide many of their orders telephonically relying significantly on the information gathered and communicated by the facility. (See Id.) For these reasons it is important to remember California statute provides patients or their representative with the right to select their own physician. 42 CFR §483.10(d)(1);42 CFR §483.40 Take advantage of this right, do the research and find an attending physician that best suits the needs of your loved one or client.
Write a Directive.
Also be aware that an increasingly common form of elder abuse is the administration of psychoactive and chemical restraints to residents without clinical justification or purely for the convenience of the staff. California Advocates for Nursing Home Reform, Toxic Medicine What You Should Know to Fight the Misuse of Psychoactve Drugs In California Nursing Homes https://www.canhr.org/reports/2010/Toxic_Medicine.pdf (2012). These types of medications can, in some cases, increase risk of harm or injury to many patients if not properly administered. (Id.) This is just one example of the possible breakdowns in nursing homes. To prevent this situation, and hopefully others, upon admission immediately write a directive telling the facility that under no circumstance is the facility allowed to administer new medications for any diagnosis which did not exist at time of admission unless the consent of the patient’s durable power of attorney is obtained.
Finally, remember with elders, conditions can drastically change overnight. One day dad is mowing the lawn and the next day he is having hip surgery and being placed in a nursing home. Be proactive. Have your family members or clients sign a health care directive that allows someone trustworthy the ability to sign documents and obtain medical records to prevent the situation described above as well as many other potential care problems.
Elder abuse is a serious issue in today’s society and one that becomes increasingly more relevant as our population continues to age. By remembering the advice above, hopefully you and your family members will avoid the heartbreak that elder abuse in nursing homes can cause. Most importantly remember the placement of someone in a nursing home can be a life-changing decision and making such a monumental decision requires no less than the detailed thought process applied by you as lawyers in your professional capacity.