COVID-19 Update: How We Are Serving and Protecting Our Clients

Articles Posted in Insight

Some people believe that engaging the services of an attorney is an event-based decision. But consider that we don’t – or shouldn’t – wait to see a dentist until our teeth hurt, or a doctor until we experience aches and pains. In the same way, developing a relationship with an experienced elder law attorney, well before a loved one (or oneself) reaches the stage where long-term care planning is a consideration, will make the process considerably easier.

In the unfortunate event that something does go wrong for someone who has chosen nursing home care, such as abuse or neglect, a legal team that is already familiar with their personal background and individual needs will make all the difference in building a winning case. This is all the more reason to put finding an elder law attorney on your to-do list.

Here, we offer three considerations in getting started.

One of the most common forms of nursing home abuse and neglect, medication errors cost facilities across the United States billions of dollars every year and can cause serious, even fatal injury to their residents.

The standard for an “acceptable” medication error rate in nursing and long-term care facilities is 5%. But while some mistakes are to be expected, repeated failures in a facility violate the rights guaranteed by the federal Nursing Home Reform Law, including a dignified existence and access to quality care. Carelessness, shortcuts or deliberate malpractice, like slicing or cutting pills that need to be given whole, or giving a patient too much medication, may also violate their right to self-determination.

Still, prevalence rates are alarming. A 2016 study published by the Journal of American Geriatrics Society concluded that as many as three-quarters of nursing home residents had been administered a potentially inappropriate medication at least once, and between 16% and 27% of residents were subjected to specific medication errors. Similarly, the American Journal of Medicine examined facility medication errors in a 2005 study and concluded that at least 40% were preventable.

A nursing home employee swipes a credit card from a resident’s open purse. A caregiver urges or coerces them to sign their name to papers or checks for false reasons and threatens them if they don’t.

Personal property and valuables repeatedly disappear from an Alzheimer’s patient’s room, only for a nurse to reassure them they never had the missing item in the first place. Or power of attorney is abused, with inappropriate decisions far from the resident’s best interest made without proper consent. Far from fiction, these scenes play out regularly in the United States in places that are supposed to be safe havens for the most vulnerable of our citizens.

Americans may picture physical scars or careless accidents at the mention of nursing home abuse and neglect. But financial exploitation in callous incidents like these are all too common and no less damaging, both to elderly and vulnerable residents of long-term care and to the wider trust in nursing homes as institutions.

In a cohort already among society’s most vulnerable to abuse and neglect, disabled patients in nursing homes and assisted living facilities are even more susceptible to harm.

It is a problem that is hidden in plain sight, causing further grief to victims’ families, abetted by a lack of public awareness and sustained interest. A simple Google search on the abuse of disabled patients in nursing homes turns up few studies or widespread media attention.

Anyone who cannot carry out life functions for themselves is dependent on others, and thus in a position of vulnerability. A broad collection of long-term care residents could qualify as “disabled,” and many more will become so as they age. According to one study, some 68% of nursing home residents have a lifetime probability of becoming physically or cognitively impaired in at least two activities of daily living. These patients may suffer increased physical ailments or develop cognitive diseases such as dementia.

Patients or their loved ones understandably devote a generous amount of time to researching long-term care facilities before making a choice. Though some of the most objective facility performance information can be found from sources like the Centers for Medicare and Medicaid Services, it wasn’t long ago they acknowledged that not all of their data could be taken at face value.

Last summer, a CMS study revealed nursing homes all over the country under-reported cases of neglect and abuse at their facilities. The figures were staggering. In 2016, more than 6,000 high-risk cases that qualified as abuse or neglect were not properly reported, or about 18% of cases where a resident was both hurt under suspicious circumstances and hurt badly enough, they required emergency room treatment. The examples ran the gamut from careless, head-scratching neglect – a 65-year old’s “accidental” opioid poisoning due to a mix-up of patient records – to outright abuse – an incident caught on tape where a nursing home employee purposely smacked a resident in the back of the head while walking through the dining room.

Many people in the Mid-South will remember a nursing home in Memphis where one resident was so neglected, he had maggots eating away at open wounds, and another’s deteriorating physical condition due to cancer was left unreported to her medical team until it was ultimately too late to save her.

Nursing home residents are among the most vulnerable members of our communities and the most susceptible to illnesses like COVID-19. While these residents comprise just 1.2% of our country’s population, recent reporting shows they account for approximately 40% of COVID-19 deaths. The danger that poor infection control practices in nursing homes presents to tens of thousands of our fellow citizens is nothing new.

In an analysis from the Centers for Medicare and Medicaid Services (CMS), 82% of nursing homes across the country were cited for infection control problems between 2013 and 2017. Half were repeat offenders. Lack of consistent handwashing and infrequent disinfection of common areas were chief culprits. Such failures allowed illness like seasonal flu to sweep across numerous facilities. The statistics on COVID-19 infection and death rates in nursing homes illustrate the dangers to residents created by poor infection control practices.

Traditionally, there are three avenues of protection from harm for nursing home residents – (1) state level inspections and regulation required by CMS, (2) visits by family members and (3) civil liability in cases of neglect, resulting in injury and/or death. Each of these layers of protection have significantly eroded in recent months.

Isolation is a deep-rooted challenge for nursing home residents. Unfortunately, because of the COVID-19 pandemic, nursing home residents are more isolated than ever.

Earlier this year, nursing homes across the country were required to close their doors to visitors at the urging of CMS and local governments. While necessary to protect the residents from the virus, this social isolation has come with its own mental health consequences.

A group in Ohio recently studied the impact of isolation on residents in 25 nursing homes. Psychologist Mary Lewis of Reflections Health and Wellness in Columbus reported that she observed alarming increases in self-neglect by the residents. Some had stopped eating normally and were sleeping more than usual, while others seemed to have “shut down” completely. Though the Ohio governor changed social distancing rules in early June to allow for limited socially distant visits at nursing homes, Lewis observed that for her clients, this did not mitigate the loss of physical proximity and touch as much as they had hoped. Psychologists and social workers are helping to offset that loss by spending more time listening to residents and assisting them with the environmental changes of increased hand washing and mask-wearing. Reflections’ employees are also assisting and encouraging residents’ use of virtual visits with their loved ones, a practice that not only lessens the adverse effects of isolation, but also offers loved ones the opportunity to observe the conditions of the nursing home resident and his or her environment.

Adequate infection control measures are central to the safety and wellbeing of nursing home residents, some of the most vulnerable members of society and those most susceptible to illness. In an acceleration of trends away from strong regulation, it is now becoming harder in many states to enforce accountability by suing facilities for negligence.

Even with the unprecedented rise in infection, healthcare facilities in general have been shielded from liability, and nursing homes in particular from fault in COVID-19-related claims. Kentucky and Mississippi are two such states. Proponents of these measures have argued that exposure to liability impedes staff members’ effective decision-making, arguably false; that existing rules and regulations do enough to protect patients, also false; and that the involvement of family and friends of patients serve as a sufficient check on patient safety, which is now a less potent safeguard given necessary restrictions on in-person nursing home visits.

Worsening standards for infection control in nursing homes are nothing new. The problems go far beyond the current pandemic and reflect gaps in the system that have long existed. For years, eased regulatory standards have chipped away at protections for patients, creating under-resourced and understaffed nursing homes where proper safeguards are impossible. In June, a Pennsylvania nursing aide shared that during a typical shift, lasting as long as 16 hours at a time, he was fortunate if he could change a patient’s soiled diaper once in an eight-hour period. He further stated that low pay meant many staff members came to work sick, feeling they had no other choice.

Nursing home residents tend to be frailer, have more functional limitations, and have more chronic and complex conditions than the general adult population. According to the Centers for Disease Control and Prevention, older adults and people who have severe underlying medical conditions, like heart or lung disease or diabetes, are likely to develop more serious complications from the novel coronavirus, or COVID-19. This fact puts nursing home residents at the highest risk for serious illness as a result of exposure, but it’s not the only risk.

Most nursing home residents require assistance with one or more activities of daily living, such as turning and repositioning, getting in and out of bed, using the toilet, bathing, feeding, incontinent care and more. In order to adequately provide these services, nursing homes must be sufficiently staffed. Unfortunately, inadequate staffing is one of the biggest problems associated with nursing homes. When attention/care is not sufficiently provided, there is often a rapid decline in residents’ health due to pressure sores, weight loss, infections and increased numbers of falls.

Federal and state regulations require that infection prevention, surveillance and management be part of new staff orientation and ongoing quality assurance and improvement efforts at nursing homes. However, infections are one of the leading adverse events that occur in these facilities, and a lack of infection control in long-term care settings has existed for years.

A systematic review conducted by the International Journal of Geriatric Psychiatry concluded that older adults living in long-term care facilities are at a higher risk of anxiety disorders than adults living in the community at large. It was estimated that anywhere from 3.2 percent to 20 percent of individuals in long-term care settings suffer from anxiety, compared with 1.4 percent to 17 percent living in the general community.

If you currently have a loved one living in a nursing home or other skilled facility, these statistics can be alarming. Fortunately, there are effective medications on the market that, when combined with therapy or other psychological support, can have profound effects for those suffering.

In order to treat anxiety, it is first necessary to identify the symptoms. Recognizing anxiety in older adults at times can be difficult, as some symptoms, such as avoidance, may be misconstrued as declining health or limited mobility. Other health complications, such as memory loss or an inability to speak clearly, may make it difficult for individuals to verbalize symptoms. However, knowing what to look for can help.

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