South Florida nursing home abuse and neglect is too often being hidden from public scrutiny, thanks to a private federal appeals process that keeps incidents of sexual assault, lack of infectious disease control, and absconding patients. That’s according to a recent investigation by The New York Times, which took a deep dive into such incidents and their impact on the Centers for Medicare and Medicaid Services’ (CMS) rating system for nursing homes. The rating system has been touted as a tool the public can use to reliably assess the safety of long-term care facilities for elderly and vulnerable loved ones. Prior incidents of abuse and safety lapses are supposed to be included in the star-based rating system. But as the journalists uncovered, at least 2,700 dangerous incidents involving nursing home abuse, neglect and negligence were not factored at all.

Many of the incidents were identified by state inspectors and verified by the superiors in those agencies. Yet the secretive appeals process meant that those incidents were never made public or counted in the rating system.

The Times and other media outlets have previously identified issues with the system (erroneously entered data can make nursing homes appear both safer and cleaner than they are, and issues with overuse of antipsychotic medications are poorly documented). However, as our Fort Lauderdale nursing home abuse lawyers can explain, the omission of thousands of validated problems uncovered during inspections is deeply troubling because inspections are at the core of the rating system on which the public relies.

On-the-ground inspections of nursing home facilities are the very basis for Care Compare, the site that rates nursing homes throughout the country. These are part of a process intended to improve transparency in facilities that promise to care for society’s most vulnerable. But state inspectors very rarely issue severe citations as it is – even when egregious offenses involving abuse or neglect occur. But even when there are penalties, The Times reported that nursing home administrators have the opportunity to appeal those rulings, almost entirely in secret. When the informal reviews don’t result in the nursing home’s desired outcome, they can appeal to a federal court that is part of the executive branch (in what seems to be a breach of the separation of governmental powers) in a process that is concealed from the public.

Furthermore, even when such citations are affirmed in this secretive federal court process, some of them still never make it into the rating system. In one example, a nursing home in Washington State was slapped with a major penalty for allowing COVID-19 to run rampant in the early days of the pandemic. Yet that citation does not appear on the Care Compare site, on which the facility retains its 5-star rating. The fact that this pattern was noted again and again reveals why nursing homes have a powerful incentive to appeal such allegations – even when wrongdoing appears glaring. Even if they ultimately lose, there’s a decent chance that report will never become public.

Nursing home executives say they should be granted the ability to appeal citations prior to them being made public, as they can be either overturned or downgraded. What they fail to acknowledge, though, is that the appeals process rarely allows patients or their families to participate in the proceedings.

An official with CMS said that it’s only fair that citations are omitted while the appeals process is pending, but said failure to factor in substantiated citations is an issue CMS is “working to correct.”

Meanwhile, there are no public dockets indicating the case status or recent legal filings. Patients and family members are also barred from testifying.

Higher Care Compare Star Ratings Mean More Money for Nursing Homes

Results of inspections by state health investigators comprise the biggest component of the star ratings for nursing homes. In theory, a facility with an excellent inspection rating will garner five stars, while one in which inspections unearth significant issues may only get one or two stars. That translates to a significant monetary impact. The public, searching for the best care facilities for their elderly or disabled loved ones, put a lot of stock into the star ratings. As such, there’s a strong correlation between better inspections and higher profits. Facilities with 4- and 5-star ratings are considerably more profitable than facilities with fewer stars. (For-profit corporations operate 7 in 10 nursing homes in the U.S.)

State health inspectors have routine inspections every year or so, but may also be dispatched for specific complaints. Inspectors will sift through medical records, shadow aides and nurses, interview residents and staffers, and test everything from the cleanliness of the bathrooms to the temperature of the coffee. Problems can lead to citations, which must be backed by evidence and vetted by an agency supervisor.

Most nursing home citations are for minor infractions. (Inspectors have been criticized for years for giving nursing homes slaps on the wrist where more significant penalties were warranted.) However, those that have the potential to put patients in immediate jeopardy or that cause actual harm can substantially impact a facility’s star rating. But consider that there were more than four dozen nursing homes with five-star ratings where inspectors decided that incidents of sexual abuse didn’t meet the bar for “actual harm” or “immediate jeopardy.” Even when nursing homes are cited for serious infractions, inspectors (often overworked and poorly paid) pretty much expect that the facility will push back hard, often resulting in citations being tossed or reduced. Some inspectors have also been fired after issuing citations for severe infractions and/or complaining when those citations are later thrown out, though officials deny that’s the reason.

Overlooked Problems

Among the incidents that never made it on to the Care Compare website:

• A New Jersey resident who was arrested after being spotted hiding heroin in the purse of another resident after a third had died from a heroin overdose.
• That a New Jersey nursing home was cited for failure to protect a fragile resident from falling seven different times, once breaking her foot.
• That a West Virginia nursing home was cited after a resident fell to the ground and died after staffers erroneously removed bed safety rails.
• An Ohio nursing home was cited after an investigator found a woman smoking while connected to a flammable oxygen tank.
• An Indiana nursing home was cited for increasing the risk of serious injury to a resident by installing the wrong railings on her bed.
• An Arizona nursing home was cited for failing to protect a 76-year-old woman from sexual assault by another resident – one who had a long history of assaulting staffers.
• A Texas nursing home’s citation for allowing an 87-year-old woman with dementia to wander unsupervised into the parking lot in a wheelchair in near-freezing temperatures in only a nightgown. She was found on the pavement after 30 minutes, bloodied and freezing and with a broken nose. The facility was cited for failing to supervise her and drugging her unnecessarily. After four years, the nursing home lost all appeals. Yet the incident was never posted to the Care Compare website.

If you or a loved one has suffered serious injuries in South Florida due to nursing home neglect, negligence, or abuse, our dedicated personal injury and wrongful death lawyers can help you fight for accountability and justice. Evidence of prior incidents of abuse, neglect, or negligence can be used to strengthen your case for liability and potentially increase your damage award.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Staffers post these images to various forms of social media, but mostly to Snapchat, a platform in which images are supposed to vanish after a certain period of time. But aside from the fact that such a violation can do damage no matter how long they are posted, the images are not actually impermanent because users can screen-shot and copy them.

ProPublica revealed at least 37 known instances from December 2012 through December 2015. Many more instances likely never came to light. More than half of those documented cases involved Snapchat.

Now, a number of lawmakers are calling for action from the U.S. Department of Health and Human Service’s Civil Rights division, as well as the U.S. Department of Justice.

Shortly after the expose was published, Sen. Joe Donnelly, D-Ind., sent a request to the Senate Committee on Aging to launch an investigation into this practice, calling it a form of nursing home abuse that demands immediate attention.

Then earlier this month, U.S. Sen. Tom Carper, D-Del., submitted a request to the federal DHHS office, asking that this agency, which enforces federal health care privacy statutes HIPPA), to acknowledge how many nursing home patient privacy complaints it had received involving social media posts. Further, he asked whether the agency had imposed any civil penalties or criminal case referrals for these complaints and whether it had any intention of issuing guidance to nursing homes on how best to advise staffers on patient interaction with smartphones and social media.

Soon after, U.S. Sen. Charles Grassley, R-Iowa, the chairman of the Senate Judiciary Committee, sent a letter to the U.S. Justice Department, requesting information on how aggressive its pursuit has been against cases of nursing home abuse. Specifically, Grassley asked for information on any prosecutions of nursing home staffers who share degrading images of patients online.

Some of the disturbing images at issue involve patients who are partially or completely naked, using the shower, using the bathroom or engaged in conversations that compel them to say demeaning and offensive things.

Because many of these patients suffer from dementia and are elderly, they lack the physical and mental capacity to defend themselves or speak out. Relatives of some victims have been horrified to see their conservative, religious matriarchs and patriarchs using offensive slang and being exposed in such a dehumanizing way.

It is, without question, a form of abuse. The calls for action by the senators are at least a step in the right direction.

Interestingly, the data gleaned by ProPublica did not reveal any cases out of Florida. However, this does not mean our state is immune from it. If it is happening in other states, it has almost certainly occurred here. It may be simply a situation where those involved have not been reported or caught or where publicity around the incident has not gained traction.

If your loved one has been a victim of nursing home abuse in Fort Lauderdale, our compassionate, knowledgeable injury lawyers can help.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Senator Asks Privacy Regulators to Stop Abuse of Nursing Home Residents on Social Media, March 8, 2016, By Charles Ornstein, ProPublica

More Blog Entries: Nursing Home Arbitration Agreements: Tossing the Keys to the Courthouse, March 9, 2016, Fort Lauderdale Nursing Home Abuse Lawyer Blog

The decedent’s son argues he did not have the legal authority to forfeit her right to remedy through the courts when he signed his name arbitration agreement stuffed into the thick stack of nursing home admissions paperwork.

He now says the roommate, a dementia sufferer who reportedly strangled his mother, had a history of problems and the facility should not have allowed her to live with another resident.

This issue of forced arbitration is a means by which nursing homes essentially toss away the keys to the courthouse. The contract they make new residents – or their representatives – sign contains a clause that states if there is a dispute regarding care – even one that results in serious injury or death – the resident agrees to resolve it before an arbitrator, rather than in court.

There are a number of problems with this approach, at least from the victims’/survivors’ perspective.

To start, these proceedings are not public. This disadvantages plaintiffs in more than one way. First, it strips the nursing home of the compelling factor of public scrutiny. They are less likely to enter a favorable settlement when they know that decision won’t be scrutinized by the public. Secondly, it takes away from victims the benefit of information that might have been gleaned from previous public trials, either against the same defendant or against another in similar circumstances.

Beyond that, cases that don’t go to court don’t necessarily need to follow – and won’t set – legal precedent. That means there are fewer checks and balances in the process. Arbitrators, whose rulings are binding, make decisions on what they perceive to be fair, rather than what the law directs. And some of these arbitrators receive regular work with individual nursing homes or nursing home corporations. This inevitably skews the fairness of the proceeding.

More often than not, arbitrators decide cases on terms more favorable to the nursing homes. Even if the victims “win,” their damage awards are likely to be far less substantial.

These are just some of the reasons why it behooves victims of nursing home abuse and neglect or their surviving relatives to challenge the arbitration agreement. And increasingly, this is happening on highly technical grounds that challenge the validity of certain clauses.

In the Massachusetts case, the son signed his mother’s arbitration agreement on her behalf when she was admitted. But while he was designated as her health care proxy, he lacked the authority to bind his mother into arbitration. Initially, in 2010 a court barred him from filing his wrongful death lawsuit because he’d signed this agreement. However, in 2014, another judge ruled in favor of the son. Now, the case is going to trial.

Nursing home arbitration agreements have come under withering criticism in recent years, and the federal government is weighing measures that would regulate the way nursing homes present arbitration agreements when residents are admitted. As some lawmakers have noted, no one should be forced to accept a denial of justice as the price for receiving the care they deserve.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Pivotal Nursing Home Suit Raises a Simple Question: Who Signed the Contract? Feb. 21, 2016, By Michael Corkery and Jessica Silver-Greenberg, The New York Times Dealbook

More Blog Entries:

Fort Lauderdale Crash Injury Victim Wins $300K Against Police, Feb. 14, 2016, Fort Lauderdale Wrongful Death Lawyer Blog