SPECIAL FOCUS FACILITIES
Attached below is a link to a very important component of the CMS survey system for long-term care facilities throughout the country. Little known among consumers is the designation "Special Focus Facility." These are nursing homes that are literally designated by CMS/Medicare as the worst of the worst. There are a number of nursing homes that work their way through this program and achieve the status of "graduation." These are facilities that took the Special Focus designation quite seriously and performed the work necessary to bring the quality of care to where it should be under the State regulations, Federal regulations and the generally accepted standard of care.
Some facilities do not improve, while others remain so poor in their delivery of care that they are no longer eligible to provide services under the Medicaid and Medicare programs.
There are a few standouts from the State of New Jersey. In the category of new additions to the list is Cooper River West.
Important for consumers in researching long-term care facilities is to not only review the survey history of each facility, but additionally to address the Special Focus list.
Outside of the State of New Jersey, three nursing homes are no longer eligible to accept Medicare and Medicaid patients.
It is important to stay on top of these issues, as the status of the quality of delivery of care of nursing homes is frequently in flux. This is occasioned by the high level of turnover among both care providers and management at various facilities. Thus, a nursing home that provides quality care one year, may slip conspicuously in the following year. This is also quite common when there is a change of ownership, which might otherwise appear seamless to the consumer public. Some owners are willing to expend the amount of money it takes to provide quality care for residents, while others are willing to sacrifice quality of care for profits. The nursing home might retain the same name for marketing purposes but may also have been sold to a less than optimal ownership and management team.
NON DISPARAGEMENT CLAUSES: PROTECTOR OF NURSING HOME AND ASSISTED LIVING FACILITY ABUSES
A few years ago, I was taking the deposition of a former director of a very troubled assisted living facility. Through the retention of certain documents and his testimony I learned that he was quite upset over his termination. He also clearly was not happy with the facility itself.
He was not able to explain why he was terminated and became quite evasive when I asked for more detail. Recognizing his complete dissatisfaction based upon his tone and his body language, I asked him about the facility itself. At that moment, it was as though I was taking the deposition of a different person. He spoke glowingly about the quality of services provided by the facility and offered nothing but praise for not only the individuals working there, but the institution itself.
I then pressed further regarding any documents he may have been pressured to sign upon his termination. I got him to admit after some time that there was a non-disparagement clause in whatever agreement he reached after his termination. Further, he was not even allowed to discuss the specific contents of the non-disparagement clause and appears to have even violated the very clause itself by agreeing that there was one. That is, it appears that the non‑disparagement clause prohibited the signer to even admit that there was a non‑disparagement clause.
The sad truth is that the very individuals who were in the best position to provide testimony that could lead to the better provision of care have had their silence purchased by large multi-million corporations that seek to protect themselves and prevent the truth from seeing the light of day. The defense attorney in the case claimed to not be able to find the actual clause in question when pressed for it through the discovery process. That is, it was muffled.
It is very important for practitioners to explore these issues when taking the depositions of former employees. Although there likely will not be non-disparagement clauses for nurse's aides and perhaps staff nurses, it is becoming quite common for more administrative positions, such as director of nursing, administrator or, in the case of assisted living facilities, directors. The same is true for group homes. These are large corporations that follow the typical corporate practice of buying the silence of former employees with whatever type of package they may receive. In reality, they take people at some of the worst moments of their lives who are simply trying to get by and indicate to them that they will only be treated fairly if they sign that particularly documentation. Some non-disparagement clauses contain language that could severely harm anyone who breaches their contents. That is, the clauses have teeth to them.
That being said, the very presence of a non-disparagement clause in the presence of a former employee can be very powerful evidence at the time of trial. It allows the jury to appreciate the fact that the corporations are so guarded about the true operations of their facilities that they will spend money to purchase the silence of those who know the truth.
This practice has long been in existence before it became popular in the arena of long term care. The New York Times has reported that many abuses in corporate America also have been silenced by non-disparagement clauses, in the same sense buying the silence of individuals who are actually in a position to effectuate change.
FALSIFIED STAFFING LEVELS IN NURSING HOMES
In late 2014, the Center for Public Integrity reported that upwards of 80 percent of all nursing homes have consistently overstated their staffing levels to the CMS web site, known as Nursing Home Compare. The basis for this was profit. The higher the rankings, the better the marketing for any particular nursing home. The nursing homes understand all too well that consumers will turn to the Nursing Home Compare web site in their choice of a nursing home for themselves or a loved one. By artificially boosting reported staffing levels, nursing homes can mislead unsuspecting consumers into what they believe will be a higher level of care than they truly are receiving.
Subsequently, the New York Times followed up on this, noting that driven by the profit motive, nursing homes consistently perform this.
The problem lies in the fact that staffing levels are self-reported.
In other words, there is no check and balance to the numbers presented by nursing homes.
Worse, it is well-known within the industry that nursing homes generally are aware of upcoming inspections, be them surprise inspections or not. It is a very small world and there is usually a very clear understanding as to when the inspectors will appear. Thus, just before the inspectors arrive, nursing homes will add more staff to the building so that when there is some degree of oversight, they will appear to be well-staffed. Immediately after the survey concludes, the nursing homes will dramatically decrease staff.
The reason for this is very simple. The largest singular expense incurred by the nursing home industry is staffing. The best way to increase profit is to reduce staffing. It is that simple. Unfortunately, on the losing end of this proposition are the residents. The more important factor in protecting residents from harm is, of course, sufficiently staffing the building with competent, caring personnel. By dramatically reducing the quantity of personnel, not only is there too much work for any given person, but it creates a toxic environment for the employees who themselves are doing their best to take care of far too many residents. This is when injuries and maltreatment occur. This is what causes people to die unnecessarily and people to suffer unnecessarily.
Throughout my practice, I have been able to demonstrate falsifications in the self-reporting of staffing levels of nursing homes. At times, nursing homes will also alter the reported acuity levels of residents so that they more easily satisfy the required quantity of staff. That is, by understating the level of severity of the illnesses or needs of their residents, nursing homes can on this particular report, satisfy staffing needs.
However, when it comes to compensation on what is known as the Minimum Data Set (MDS), nursing homes are now incentivized to overstate the acuity levels of their residents, because the MDS drives the money.
When studying these issues, the Center for Public Integrity was able to compare the Cost Reports of nursing homes (simply, their budgets) to the CMS Compare self-reported numbers. A shocking 80+ percent of nursing homes were overstating the staffing levels. This is aside from the artificial boosting of staffing levels just before and during inspections. It also is in addition to the fact that nursing homes will frequently understate acuity levels for the Nursing Home Compare reporting and overstate them on the MDS forms.
In the end, it is the very dangerous formula of placing profits over the welfare of residents.
According to Federal Regulation 42 CFR 483.13(A).5 (F Tag 222), the use of chemical restraints as a form of convenience is never acceptable. As the “F Tag” reads:
F-222 – Right to be free from chemical restraints - 42 CFR 483.13(a) - Resident has the right to be free from any physical or chemical restraints imposed for purposes of discipline or convenience, and not required to treat medical symptoms.
It has long been known in the long-term healthcare industry that this laudable regulation is, sadly, the opposite of the truth on the ground.
That is, the most prolific expense faced by for-profit nursing home corporations is that of labor. Along those same lines, approximately 80 percent of all nursing home residents suffer from some degree of dementia. This makes care for those individuals labor intensive. One of the best ways to reduce the labor costs in taking care of these vulnerable and innocent individuals is to simply drug them.
Running in tandem with the opioid epidemic and with multinational, multi-billion dollar drug companies essentially serving as drug pushers/drug dealers, the epidemic for the frail and elderly is worsening.
A recently released report by the watchdog company, HUMAN RIGHTS WATCH (see Study Here), reveals that this epidemic in nursing homes is even more profound than previously understood. That is, as a means of improper restraints, nursing homes are simply drugging their own residents, to the point where what little quality of life remains for them is now obliterated.
Worse, nursing home personnel are admitting off the record to blatantly violating all applicable regulations by both prescribing and administering such mind-altering medications without true involvement of any physicians and without apprising family members. Instead, they simply start a course of drug therapy and then give the family a partial story as to what has been happening, affording the family no participation in the decision-making process.
To be clear, should any consumer or attorney learn that this is happening to a vulnerable resident, recourse is available through common law and statutory claims against the nursing homes and should concomitantly be reported to the appropriate surveyors for their state.
As most nursing home practitioners are well aware, one of the central and most powerful documents in a nursing home chart is the Minimum Data Set (MDS). This document is the basis for "ensuring that residents receive appropriate and quality care, and as a basis for payment from federal funds…" The document further must be signed by multiple staff members which, if it is not accurate and truthful may subject those individuals or their organization "to substantial criminal, civil, and/or administrative penalties for submitting false information…"
As these cases are typically defended, nursing homes will retain medical experts to opine that the death of such individuals was inevitable and unavoidable. Belying such arguments is usually the Defendant’s own chart…and Section J-1400. This powerful, yet simple component of the MDS compels a nursing home, among other things, to provide a certified assessment as to whether or not in their view, this individual has 6 months or less to live. Further, the section ultimately requires physician involvement for rendering and reporting the assessment.
Usually for financial reasons and typically also based in reality, it is quite rare to find a chart that assesses a resident as being predicted to have fewer than 6 months to live.
In truth, most nursing home residents do in fact have more than 6 expected months to live. Further, based upon the profit motive of most nursing homes, they could not legitimately justify the exorbitant services provided if the resident was literally on a death watch. In this regard, J-1400 should be compared with Section Q 0300, which addresses whether or not there is a reasonable expectation to discharge to the community, another facility, or whether such information is unknown or uncertain.
Equally important is Section O, regarding special treatments, procedures and programs. In most instances, treatments through physical therapy and occupational therapy rarely are provided for an individual expected to die. This is because it represents an incredible profit center for the nursing homes, be it active or passive modalities of therapy.
To properly utilize these components of the MDS, it is essential to arm one's own experts with specific requests to analyze the import of J 1400 to the case itself and to back such theories with careful deposition testimony elicited from the on-the-ground staff. Armed with these concessions and expert support, it is usually the case that the defense position in hiding the nursing home abuse – bolstered only by their own expert and no actual staff members of the facility or their own chart - will fail.
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