Nursing Home Abuse Advocate : Idaho Nursing Home Abuse Lawyers & Attorneys : Kormanik Hallam & Sneed Law Firm : ID Assisted Living Neglect, Nursing Home Injuries : Boise, Nampa, Caldwell

In a previous post entitled "Reliable Internet Resources For Choosing A Nursing Home," I linked to Medicare's "Nursing Home Compare" website. Through the Nursing Home Compare website, you can access and view a facility's "Five Star" rating. According the Medicare:

"The Five-Star Quality Rating System was created to help consumers, their families, and caregivers compare nursing homes more easily and help identify areas about which you may want to ask questions. This rating system is based on continued efforts as a result of the Omnibus Reconciliation Act of 1987 (OBRA '87), a nursing home reform law, and more recent quality improvement campaigns such as the Advancing Excellence in America’s Nursing Homes, a coalition of consumers, health care providers, and nursing home professionals."

From the link I posted, it takes approximately five (5) "clicks" to get to the faciilty's rating. Shouldn't it be easier than having to go through Medicare's website to find a facility's Five Star rating? The folks in California think so. That is why a new law was passed that requires nursing home facilities, beginning in January 2011, to post their rating. According to Los Angeles County Supervisor Michael Antonovich: "This posting system provides vital information for families to make informed decisions about the care for their loved ones and provides incentives for nursing homes operators to establish and maintain high-quality standards of care and compliance."

Now, I'm generally not in favor of more laws. There are, of course, exceptions to every rule. You have to wonder why nursing homes would not voluntarily post their Five Star ratings. After all, aren't they something to be proud of? If not, why isn't the facility doing something to "fix" the problems it has?

Come on, Idaho nursing homes, do you need a law requiring you to post your ratings or will you do the right thing for your potential residents and conspicuously post your Medicare ratings for all to see? Don't you want to provide this information to those shopping for the best nursing home around? Really, what do you have to hide?

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In a previous post entitled "Yes, Elder Abuse Happens...Even In Idaho," I relayed the story of Verda Nicks and her untimely and tragic death. Ms. Nicks' twin sons, age 55, are charged with felonies alleging they subjected Ms. Nicks to abuse and neglect.

The day after my post, the Idaho AARP issued a press release letting all of us know the signs of Elder Abuse. The AARP's list contains important information for you to be aware of. According to the AARP, the following are signs of elder abuse:

• Unexplained bruises or other injuries.
• Sudden change in behavior.
• Caregiver's refusal to allow visitors.
• Elder is extremely upset, withdrawn, unresponsive; other unusual behavior.
• Dehydration, malnutrition, untreated bed sores, weight loss.
• Unattended health problems or lack of necessary aids, such as eyeglasses or dentures.
• Unsanitary living conditions (lice, soiled bedding).
• Inadequate clothing; no heat or running water.
• Unexplained bank withdrawals, unauthorized use of a credit or ATM card, stolen or "misplaced" cards or checkbook.
• Checks written as a "loan" or "gift."
• Abrupt changes in a will or other documents.

These warning signs apply whether an elderly person is in the community, an assisted living facility or a nursing home.

If you observe any of these warning signs, or if your "gut" tells you an elderly family member, friend or neighbor is being abused, you should call Adult Protective Services at (877) 471-2777 and the local police; in an emergency, call 911.  If you observe the signs in an assisted living facility or nursing home, report your concerns immediately to the facility's management and call the Idaho Ombusdman at (208) 334-3833.

Of course, you will not see any of these warning signs if you do not take the time to check in on an elderly family member, friend or neighbor. I know we are all busy but, honestly, are we so busy that we do not have a few moments to pick up the phone and place a call or walk to an elderly neighbor's house to check on them? We have all heard the expression "it takes a village to raise a child." In fact, it also takes a village to ensure our elderly citizens are properly cared for and not subject to abuse and neglect. Take the time and make the effort, you could be saving someone's life.

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As part of my work on behalf of nursing home and assisted living facility residents, and in part because of my work on this blog, I am constantly updated on news stories concerning elder, nursing home and assisted living facility abuse. Typically, the stories I read are from such far flung regions as Illinois, Florida and New York. Although I certainly take no pleasure in any of these stories, I am "glad" these tragedies are not occurring in my back yard. Unfortunately, a story in today's Idaho Statesman concerning elder abuse is in my back yard. That the abuse did not occur in a nursing home or assisted living facility matters naught. It is a tragedy.

The story by the Idaho Statesman's Kristin Rodine is about the death of Verda Nicks, who died on December 26, 2009. Six weeks earlier, Ms. Nicks was found in a "garbage-and feces-filled home." She was found because of the caring actions of a friend, who had been unable to contact Ms. Nicks by telephone for several weeks. Although Ms. Nicks told authorities she was caring for herself, the Canyon County Prosecutor, John Bujak, has evidence that Ms. Nicks' twin sons, Danny and David Nicks were, in fact, providing care for their now-deceased mother. Mr. Bujak has charged the sons with felony abuse or neglect of a vulnerable adult, a crime which carries a sentence of up to 10 years in prison and a $25,000.00 fine.

According to the article, and based on information provided by Ms. Nicks' sons, Ms. Nicks had been bedridden for about two years since breaking her hip. This was the second time Ms. Nicks had done so. The first time, she entered a nursing home. Apparently, again according to the sons, Ms. Nicks did not want to go back to the nursing home after she broke her hip the second time.

Under our system of justice, the sons are presumed innocent until proven guilty; this story is just beginning. Whether or not the sons are ever convicted, this story does provide a cautionary tale for those of us with elderly parents. If you parent is injured, make certain you can, in fact, provide the care that is necessary. If you cannot, help them, with input from qualified health care providers, find a facility that meets their needs. There is no shame in admitting you cannot provide the care y our loved one needs.

If the sons are indeed telling the truth when they say Ms. Nicks did not want to return to a nursing home after breaking her hip the second time, this fact also makes me wonder. What kind of experience did Ms. Nicks have during her first nursing home stay that resulted in this thinking? Unfortunately, at this point, we will likely never know.

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Let's face it: No one wants to think about the end of their life. Because of this, many of us do not have end of life plans to ensure our affairs are in order. Making sure your wishes are followed as your life nears its end is important; after all, they are your wishes!

Melissa Healy, in a recent Los Angeles Times "booster shots" blog, tackled the difficult subject of "getting your affairs in order."  The post links to a Guide Book for those with a serious illness to help get their affairs in order. The guide book was published by the American Bar Association Commission on Law and Aging for the National Hospice and Palliative Care Organization. Although Ms. Healy's entry is based upon receiving bad news from a health care provider, it contains good information for all of us to consider as the new year approaches.

The Guide Book discusses, in fairly good detail, step-by-step instructions on the following areas: 

• Planning how you will pay for the healthcare you need;
• Making a plan for the management of your health and personal decisions during your illness;
• Making a plan for the management of your money and property;
• Planning for the care of dependents;Knowing your rights as a patient;
• Knowing your rights as an employee; and
• Getting your legal documents in order.

Although all of these areas are important, for nursing home residents, perhaps the most important area is that of making a plan for the management of your health and personal decisions. If you cannot make your wishes known, you want to make certain they have been previously documented or someone who knows your wishes is legally able to make them known for you.

In Idaho, there is a specific law governing "living wills and durable powers of attorney for health care." This is just the document to make sure your desires are known and a the appropriate person is able to legally make decisions about your health care when you cannot. Such decisions include, for example, the level of care desired, including whether a "do not resuscitate" or "DNR" is properly carried out.

End of life decisions are difficult things to think about, let alone put on paper. Carefully considering the care you wish to receive, with input from, among others, family, friends, medical care providers and, perhaps, clergy, is critical. If you do not plan, and put your wishes to paper in a legally enforceable document, your wishes may not be followed. That would be a tragedy.

Take the turning of the year to decide what you want concerning your health care. Make a plan and make your wishes known. There is no better time to do so.

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The Idaho Department of Health and Welfare, Bureau of Facility Standards is the state agency that conducts "surveys" of Idaho's nursing homes to make sure they are in compliance with all applicable federal and state regulations. It may surprise you that in the most recent survey available, for the period of January through June 2009, there were seven (7) citations issued for facilities who hired staff "guilty of abuse." Although this may not seem like a large number of citations, remember two things: (1) This survey was for a six month period; and (2) There were only 64 surveys conducted.

What drives facilities to make such an egregious and potentially harmful hiring decision? First and foremost, facilities often do not conduct appropriate and thorough background checks on applicants. Second, many facilities do not pay for quality staff and, thus, they "scrape the bottom of the barrel" of the employee pool. Third, some facilities simply need to "fill the void" when existing staff leave and may believe that some staff is better than no staff. Of course, none of these "excuses" for hiring staff "guilty of abuse" are "reasons" for substandard hiring practices.

Before choosing a nursing home, make sure you ask the appropriate administrator what type of background checks are conducted on potential employment candidates. Also ask if the facility has received any citations from the Idaho Department of Health and Welfare's Bureau of Facility Standards. If the facility has received any citations, ask to see them and what the facility did to correct its conduct.

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In a prior post, I wrote about the Ombudsman for the Idaho Commision on Aging and his or her duty concerning the care of nursing home residents. If you are concerned about nursing home care, you can also lodge a complaint with the Idaho Department of Health and Welfare (IDHW). Indeed, the IDHW encourages the filing of appropriate complaints: "The opportunity to lodge a complaint provides the public with a mechanism to notify the Bureau of Facility Standards (i.e. State Survey Agency) of a health care providers failure to provide appropriate care within the framework required by regulations."

If you wish to file a complaint, you should contact the Bureau of Facility Standards at (208) 334-6626, or, in writing at: Bureau of Facility Standards, PO Box 83720, Boise ID 83720-0036. If you file a complaint, you should be prepared to provide the following information:

• Provider/Facility Name and City
• Name of Patient/Resident
• Detailed Statement of Care Provided And Any Negative Outcomes
• Names of Witnesses
• Your Name and Contact Information; unless you wish to remain anonymous.

After a complaint is filed, it will be investigated by Bureau of Facility Standards' staff in a confidential manner. If you would like to know the result of any complaint against a facility, you need to request the results through a public records request to the Idaho Department of Health and Welfare.

Although notification of the staff of a facility is one way to ensure your concerns are heard, you should also file a formal complaint with the Bureau of Facility Standards. Such a complaint will ensure your concerns are taken seriously and investigated appropriately.

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According to a December 12, 2009, online article by Jeffrey Wolf and Kevin Torres of Colorado's 9news.com, 87 year old Eldon Foster "strayed away" from his assisted living facility in the freezing temperatures and, ultimately died of exposure. What is shocking is that Mr. Foster was found by an employee of the facility and returned to his bed; he did not die in the outdoors.

The circumstances of Mr. Foster's death are, indeed, tragic. Mr. Foster had been diagnosed with Alzheimer's disease. According to the article, Mr. Foster wandered away from the facility, wearing only a T-shirt and his underwear,at around 2:30 a.m.; the temperature outside was 3 degrees Fahrenheit. The aide found him Mr. Foster lying on the sidewalk "about 15 feet from the door" with a cut on his head. Instead of calling 911, however, she simply assisted Mr. Foster back to his bed. The aide checked on Mr. Foster again after about an hour; he was unresponsive. Only then did the aide call 911.

Although the owners of the assisted living facility say this was a tragic "accident that could have been prevented," because of the facility's policies, what is more telling is the fact that the aide had worked for the facility "on and off for nine years." This fact leads me to believe the aide was simply not properly trained to perform her job. If the facility had properly trained her, there would have been no doubt in the aide's mind about what needed to be done when she found Mr. Foster. I am sure the assisted living facility, no doubt, conducted a training session immediately after this tragedy. Unfortunately, for Mr. Foster and his family, that training came too late.

If you or a family member is a resident of an assisted living facility or nursing home, be sure to ask about the training staff receives concerning the facility's policies and procedures. This not-so-gentle reminder may lead to proper training of the staff and, ultimately, save a life.

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In a recent blog post by the California lawyers of the Walton Law Firm, talk about the growing trend against mandatory arbitration of claims arising out of abuse or neglect occurring in a nursing home facility. In two of our most recent nursing home abuse cases, a review of the documentation revealed the presence of an "Arbitration Agreement." Although this "Arbitration Agreement" was "voluntary," if signed by the proper individual, it is, indeed, binding.

Whether you are required to sign an arbitration agreement upon admission, or are asked to sign one, there are several things you should know. If the agreement is signed, it is, absent some very specific circumstances, binding.

Additionally, should you be injured by the negligence of the staff of the facility, you give up certain rights if you signed the arbitration agreement. Examples of just some of the rights you give up are:

• Instead of having your case against the nursing home heard in public and by a jury made up of members of the community, your case will be heard in private by one or more "professional arbitrators";
• You may be responsible for one-half the cost of the arbitration, which can cost you thousands of dollars out of your own pocket; and
• At the conclusion of the arbitration, your right to appeal any award may, and oftentimes is, extremely limited.

I am not in favor of arbitration in the nursing home context. I believe in the jury system and feel that, when a person is injured by the negligent acts of a nursing home facility's staff, that matter should be heard by a jury. Honestly, the private nature of arbitration does not ordinarily benefit the injured party; instead, it is typically the facility who wants to keep its negligence out of the public eye.

When you or a loved one are being admitted to a nursing home or assisted living facility, be careful what you sign your name to. In the mound of paperwork provided by the facility, you may be signing away your right to sue the facility in court if you are injured as a result of negligence. Know what you are signing; it matters.

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In today's New York Times, an editorial by Harold Pollack, of the University of Chicago's School of Social Service Administration, recognizes one of the costs of expanded health care now being considered by Congress. According to Mr. Pollack,  although approximately 30 million Americans stand to gain health care coverage under the bills now being considered by Congress, that expanded coverage comes with a price.

That price, Mr. Pollack informs us, is a decrees in Medicare spending on home health care services. These are the very services which allow Medicare recipients to remain at home and out of nursing homes or assisted living facilities. Mr. Pollack's editorial contains short views of a number of other experts concerning the Senate bill.

Is it better for us or our loved ones to be cared for at home rather than be forced, by financial realities, to enter a nursing home or assisted living facility? Of course. Is it better for 30 million Americans to be provided with health care coverage which they otherwise would not have? Of course. There, as they say, is the rub.

No matter the final outcome of the health care debate, with the aging of the American population, one thing is certain. More people will likely be entering into nursing homes and assisted living facilities. Those individuals and their families must be sure the facility provides the services necessary to provide adequate care. Those facilities also must be held to the highest standards in the care of residents.

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