Elder law attorneys deal with various violations of the rights of seniors, including: discrimination from their employers, the denial of care, unfair treatment by health insurance companies, and financial abuse. For instance, an edler may be denied further Medicaid insurance coverage due to an inaccurate assessment that determines that he or she exceeded the asset limit. An attorney can then investigate and uncover that this individual was the victim of identity theft.
Some elder law attorneys, like nursing home abuse lawyers, specifically handle cases of abuse brought against nursing homes or other long term care facilities. In fact, nursing home litigation is one of the fastest-growing areas of health care litigation, with thousands of cases a year. That means that most skilled nursing facilities will need legal representation at some point or another.
The majority of long term care facilities do not have in-house counsel. Rather, they rely upon outside counsel for a variety of legal matters, and that may not be optimal. “The idea is to find the right person to be able to be the quarterback, if you will, of all your legal needs, and that’s difficult,” said Glenn Fox, the executive vice president of legal, compliance, risk management, and general counsel for Acts Retirement-Life Communities.
Attorneys that represent long term care facilities must deal with matters related to:
- Financial exploitation
- Government-provided insurance policies
- Acquisitions and affiliations
- Bank transactions.
The issue with general counsels is that facilities may not be represented by the best. “I’ve been in firms where they say, ‘Oh, you need somebody to do a real estate transaction? My partner down the street will do that,’ and you have no idea whether he is good or not,” Fox said. He also mentioned that general counsel might rely on someone spread too thin, like a “general practitioner lawyer who handles personal injury cases in the morning, wills, trusts, and estate planning in the afternoon, and then serves as general counsel for the local skilled nursing facility at night.”
Legal Senior Counsel Long Term Care Representation
In-house legal counsels help to ensure that residents are not being taken advantage of financially and that there is someone on site who knows how to handle any potential lawsuits against the long term care provider. As Fox explained on the podcast, the job of an in-house legal counsel is to protect an organization. And it is difficult to do so without dedicating your time to the concerns of a long term care facility, which could potentially be accused of:
- Neglect or negligence
- Verbal or psychological abuse
- Medical malpractice
- Physical assault
- Wrongful death
- Discrimination against residents with disabilities
- Medicare or Medicaid fraud
- Failure to protect residents from fraud or abuse
- Retaliatory transfers
- Wrongfully terminating a contract
Long term care facilities must abide by laws particular to their industry. Perhaps most importantly, they must have sufficient staff to fulfill long term care needs. Without the proper number of care providers on staff, the facility may not be able to fulfill their comprehensive care plans for each resident, an important regulation under federal law, and could face litigation as a result, like this class-action lawsuit brought against a nursing home in North Carolina.
Facilities also have to comply with the Americans with Disabilities Act. Since they are health care providers, they are required to provide fully accessible health services for residents dealing with disabilities. This ensures equity with residents without disabilities in getting the care they need and being free from physical or mental abuse.
In-house counsel will be familiar with the culture and workings of its particular facility, which will help when addressing evidence from the prosecution. Evidence used against nursing homes can come in the form of:
- Written or digital documents
- Film and photographs
- Medical records
- Witness testimonies (interrogatories and depositions)
Of course, these attorneys will also assist with financial matters. For instance, in cases in which an organization is struggling to meet debt covenants, an in-house counsel will “help them move forward so that they don’t miss their debt covenants,” said Fox. And a lawyer like Fox will also help with bond financing, including finding an underwriter when necessary and placing private bank transactions with tax-exempt overlays.
Long Term Care Legal Forms and the Litigation Process
Lawsuits against facilities often take the form of a tort or a breach in contract. It is the prosecuting attorney’s job to prove that a harmful act, such as abuse or neglect, was committed. Like in traditional law, the litigation process has a natural progression starting with pleadings, where each side of the case is presented by the two parties. Discovery then follows this step as a way to gain information based on the original pleadings.
Most lawsuits against nursing homes are settled out of court. Nursing Home Abuse Justice estimates that about 92% of cases result in settlements. And the seniors who bring charges against long term care facilities usually receive large sums of money. According to a 2001 study in Health Affairs, the average recovery amount among paid claims was $406,000, nearly twice the level of a typical malpractice claim ($207,000). Settlements often award compensation for medical bills and punitive damages for pain and suffering.
Still, going to court for lawsuits is not always inevitable. In rare cases, a trial will be held in order to reach a verdict, which may be followed by appeals. Of course, before litigation commences, filing certain legal forms can help save you from the grueling and time-consuming litigation process.
- HIPAA release forms: The Health Information Portability and Accountability Act (HIPAA) ensures a person’s health information and records remain private. This prevents medical professionals from sharing any details regarding a patient’s or resident’s health unless written consent is provided.
- Power of attorney forms: These enable the patient or resident to appoint a trusted relative or friend to handle specific healthcare decisions on their behalf. While this sounds similar to HIPAA, the difference is that power of attorney allows decisions to be made for the patient or resident so long as they are mentally competent at the time of signature.
- Advance health care directive documents: Better known as “wills,” these allow residents to articulate their desires for end-of-life care, including difficult medical decisions that need to be made about treatment and resuscitation.
5 Common Types Of Nursing Home Claims And Litigation
Failing to comply with federal regulations can lead to lawsuits, but oftentimes it is an unfortunate series of events inside facilities that result in litigation. According to an article in Health Services Insights, there were over 120,000 deficiencies, 2,466 civil money penalties, and 524 denials of payment issued to nursing homes located in the United States for regulatory violations in 2013. And in 2014, a shocking 20.5% of nursing homes received deficiencies for causing the potential for or actual harm or jeopardy to residents. In other words, there are major issues to how nursing homes manage their residents, and these could put their facilities in serious legal jeopardy.
Long term care attorneys typically represent their clients for claims concerning:
- Falls: When residents fall, the nursing home may be liable. According to a study by the CDC, 10 to 20 percent of falls in nursing homes cause serious injury and may result in disability, functional decline, or a reduced quality of life.
The same study reports that 16 to 27 percent of falls among residents are due to hazards, like:
- Wet floors
- Poor lighting
- Incorrect bed heights
- Improperly fitted or maintained wheelchairs.
Falls may also be caused by:
- Changes in medication
- Difficulty in moving
- Poor foot care
- Poorly fitting shoes
- Improper or incorrect use of walking aids
It is, thus, incumbent upon nursing homeowners and administrators to ensure that safety precautions are taken to best protect residents and avoid lawsuits.
- Pressure ulcers or bed sores: These are skin lesions or wounds caused by unrelieved pressure that damages the underlying tissue. These are graded on a scale from I, a minor reddening of the skin, to IV, an open wound with exposed muscle or bone. According to Barry Doyle, a member of the Nursing Home Litigation Group for the American Association for Justice, pressure ulcers are named as such because they primarily occur on parts of the body where there is pressure between a bony prominence and another source, like a bed or chair.
Per federal regulations, a resident who enters a nursing home without such ulcers should not develop them unless they are clinically avoidable. Further, if they do develop, the nursing home must properly treat them and prevent infection.
A nursing home may be in violation of these regulations for failing to:
- Regularly reposition the resident
- Provide adequate toileting and clothing changes
- Provide adequate nutrition and fluids
- Improper care or lack of hygiene: Members of a nursing home staff may cause dangerous infections to be spread to residents due to either the staff’s poor hygiene or not properly caring for residents. In terms of care, poor hygiene can mean:
- Leaving residents in dirty clothing
- Failing to change their dirty diapers in a timely fashion
- Inadequately cleaning wounds or bathing residents
- Failing to sanitize bathrooms and shower areas regularly
- Failing to properly clean dining and kitchen areas
These issues can all be connected to understaffing, which is an issue for the majority of nursing homes. As this article in the Journal of Applied Gerontology shows, understaffing can result in staff members failing to observe proper hygiene, like washing their hands. And, of course, understaffing, which is considered a kind of neglect, often means that nurses will be so overwhelmed that they will not have the time or even forget to tend to residents in a way that avoids the spread of infection.
- Negligent staffing decisions: Nursing homes are contractually obliged to provide care and medical attention for seniors. Under the Nursing Home Reform Act, residents are entitled to a “reasonable standard of care.” Defining that, of course, can be difficult. Case-specific situations are considered in the context of the standards of care provided in similar cases. In most cases, it is entirely evident that elders have been treated unreasonably. Still, the prosecution must demonstrate that it was due to the facility’s negligence or lower standard of care that the plaintiff suffered damages.
In addition to the aforementioned matters of unsafe environments that cause falls, bedsores and poor hygiene, neglect can include:
- Malnutrition, dehydration, or food poisoning
- Scalding and other significant personal injuries
- Financial abuse
- Emotional abuse and abandonment
- Accidents that lead to traumatic brain injury (TBI) or paralysis
- Sexual abuse: According to the Nursing Home Reform Act, long term care facilities are not only responsible for preventing sexual abuse, but they must also report all alleged violations to administrators and to other officials in accordance with state law. Further, in such cases, they will need to provide evidence that they thoroughly investigated all alleged violations and then took steps to prevent further abuse during the investigation proceedings. These investigation results must be reported within a certain number of working days (usually around five) of the incident. The time frame varies for different states. You can read about the signs, the preventative measures, and the steps to take when suspicious of sexual abuse in long term care here.
Affiliations and Acquisitions in Long Term Care
In addition to protecting a facility from a potential lawsuit, in-house legal counsel can facilitate changes in management that occur during affiliations and acquisitions. In acquisitions, one organization acquires the assets of another. Meanwhile, in affiliations, only an organization’s owner and management change. “[An example of an affiliation] could be that the CEO is going to retire, and the board doesn’t know how to replace him or whether they want to relocate,” said Fox. “The board or management might say we’ve got to affiliate with someone else because of those issues.”
It is in such cases that in-house counsel can intervene and find a resolution. “You’re trying to match up what one organization did with what you do and make sure they’re compatible,” he said. Fox mentioned the following matters to consider in acquisitions:
Mission compatibility: The two organizations must be a good fit. For instance, Fox and Acts look to acquire facilities that have a similarly religious leaning.
Peaceful takeover: It is important that the organization acquiring a new facility is welcomed by the community. “We don’t look to do a hostile takeover,” said Fox. He mentioned that some organizations will simply be looking to make money and decide to “take over” another organization. “We want to be wanted by the community, by the residents, and by others,” he said. “If we get the inkling that we may not be wanted, for whatever reason, we may back away. Though, at times, we’ve tried to convince organizations that we’re the right fit for them.”
Education: It is important to explain the process of an acquisition as much as possible to boards, residents, and others involved. “They may be scared of what’s going to happen to them,” Fox said. “And when you’re dealing with seniors, they’re not looking to have their status changed.”
Tax exemptions: In the process of an acquisition, it is important to not change anything that will affect the tax-exempt purpose of the organization. “That’s the key [concern with] a nonprofit, charitable, 501(c)(3) organization,” said Fox.
A successful acquisition is one in which the priorities of management are represented in every sector of the organization. “One of the things we do is make sure that management flows through at all levels,” said Fox. “We take management, really operational day-to-day, and push it down into the regions to make sure that things are being run appropriately. That’s really part and parcel of making sure the message continues on.” He continued to say that this includes looking at what preceded the acquisition and “cleaning up” other areas, like food service.
Tax Exemptions for Nursing Homes
About 30% of nursing homes are considered non-profit organizations, which means that they must distribute their profits back into the business, not to shareholders. Such institutions are eligible for tax-exempt status; they do not have to pay taxes for their revenue so long as the money is going back into the business. Of course, non-profit organizations still have to pay payroll taxes for their employees, but being tax-exempt often allows these organizations to stay afloat and provide care for their residents.
It is important to note that not every non-profit facility can earn tax-exempt status. They have to file for incorporation and receive approval from the IRS. This is why staying in compliance and being prepared for audits is imperative for these organizations.
Audits are conducted by the staff of the state health facilities licensure and certification agency to ensure that the care provided at nursing homes is in accordance with federal regulations. These inspections, or surveys, can occur with or without warning at least once or twice a year. Like a traditional audit, the facility’s financial records are observed, but performance is also checked to make sure residents are receiving care that meets federal regulations. In order for an audit to be conducted at a nursing home, a registered nurse provided by the state must be in attendance.
The Centers for Medicaid and Medicare Services (CMS) has stipulated sanctions for nursing homes found to be in violation of federal regulations. These may include:
- Appointing temporary managers for facilities
- Hosting training and other workshops for staff members
- Creating directed plans of correction
- Imposing a sliding scale of fines
- Removing homes from Medicare and Medicaid
Maintaining non-profit status is far easier with in-house legal counsel that can help with the necessary forms and other compliance matters. Further, as mentioned above, in-house legal counsel will help facilitate management transitions during affiliations. Guaranteeing that the identity of a non-profit organization is maintained is critical to successful changes in leadership.
Facilities can also refer to LeadingAge Legal Committee for technical assistance and policy guidance on legislation, regulations, and court cases related to long term care. Both committees feature some of the best in the industry, including Fox, who has over 35 years of experience as a lawyer, a Master’s in law (LLM), a Master’s in taxation (MTax), and is a certified public accountant. Fox also works with the LeadingAge In-House Legal Committee, which is composed of attorneys that work for long term care organizations.
In-house counsel gives long term care facilities a great advantage, as these attorneys are informed as to the culture and ongoings of the nursing homes they represent. This means they can help facility owners avoid lawsuits, hefty settlements, and losing their non-profit status. An in-house legal counsel can also greatly advance the financial situation of a facility by providing guidance in bank transactions and loans. While it is possible to rely on outside counsel, this may result in receiving subpar counsel and jeopardize the success of your facility.
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