In the past few weeks, allegations of nursing home residents’ abuse have surfaced in two Minnesota communities. As a result, some families and seniors have begun to question their trust in nursing home care.

The allegations as described in the complaints are appalling, yet they serve as a reminder about the responsibility we all must take in caring for our spouses, parents and grandparents.

Let’s be clear: even one incident of elder abuse in any setting is one incident too many.

But we also need to put the allegations in Albert Lea and Montevideo into a larger context. There are approximately 400 care centers in Minnesota, serving nearly 34,000 seniors a day. The vast majority of caregivers in these settings, as well as in home and community-based settings, provide excellent care; they do so out of a sense of mission and passion, not money.

As leaders of organizations that serve older and vulnerable adults, we are united and have combined efforts in support of larger reform for the prevention of elder abuse.

We have launched the Vulnerable Adult Justice Project. While our individual organizations often have different perspectives and may occasionally disagree on public policy, we have no disagreement when it comes to abuse. We share a common goal of increasing awareness of this issue and have strengthened our commitment to preventing elder abuse.

While there is much to be done under this broad umbrella, we have identified some key priorities for the coming months.

First, it is essential that the Legislature pass the Older and Vulnerable Adult Act reform bill.

For the past 15 months our organizations have worked through a vulnerable adult stakeholder group to craft the reforms contained in this legislation. The recent allegations highlight the need for the Legislature to act. This legislation will streamline the Vulnerable Adult Act reporting system, assure first responders have the tools to serve a growing and changing population and help to better protect vulnerable adults from financial exploitation.

In addition, as the Legislature considers funding priorities in this fiscal crisis, it will be critically important to assure that adequate resources are directed to law enforcement and state agencies that assure incidents of abuse do not occur.

Second, these allegations highlight the need to improve training provided to paid caregivers on dementia care and on prevention and reporting procedures. In concert with this priority, we will continue to work with providers as they strive to report any suspected incidents of abuse.

Third, we will reach out to families, clergy, law enforcement, prosecutors and other key community members to raise awareness of the signs of elder abuse and how it should be reported and investigated.

Compassion requires us to protect the aging and vulnerable. While the Vulnerable Adult Justice Project has a diverse membership, we share one common goal: to protect those who cannot protect themselves. We urge others to join us in our campaign to end elder abuse at all levels and settings.

Deb Holtz, Minnesota Office of Ombudsman for Long-Term Care

Michele Kimball, AARP Minnesota

Gayle Kvenvold, Aging Services of Minnesota

Mary Birchard, Alzheimer’s Association of Minnesota and North Dakota

Patti Cullen, Care Providers of Minnesota

Mark Wandersee, ElderCare Rights Alliance

A. Kimberley Dayton, Elder Justice & Policy Center, William Mitchell College of Law

Neil Johnson, Minnesota HomeCare Association

For more information regarding the Vulnerable Adult Justice Project, please contact Mark Wandersee at: mwandersee@eldercarerights.org
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This website is not intended to provide legal advice as each situation is different and specific factual information must be obtained before an attorney is able to assess the legal questions relevant to your situation.
If you or a loved one has suffered an injury or abuse in a nursing home or other care facility that serves the elderly in Minnesota , please contact our firm for a free consultation and information regarding the obligations of the facility and your rights as a resident or concerned family member. To contact attorney Kenneth LaBore, directly please send an email to klabore@prslegal.com or call Ken at 612-767-7503.

Sex-abuse cases may lead to law changes
As some debate the breadth of abuse in nursing homes, experts and victims’ families plan to seek more safeguards for the elderly.
By WARREN WOLFE, Star Tribune
Last update: December 28, 2008 - 11:24 PM
The bizarre and chilling reports of physical and sexual abuse against nursing homes residents in Albert Lea and Montevideo, Minn., may be rare, but some experts and victims’ families are poised to ask the Legislature for additional safeguards.
Even those calling for change, however, disagree about the extent of the problem — and some are fending off what they fear might be draconian proposals for change, such as installing “granny cams” in nursing home rooms and requiring prosecutors to charge abusers with felonies.
“Are people in Minnesota nursing homes safe? I would say most of them are safe — at least safe from abuse,” said Mary Birchard, executive director of the Alzheimer’s Association in Minnesota.
But the head of an advocacy group warned that “nobody in a Minnesota nursing home is safe from abuse.”
“Some homes do better than others at setting the standard for care, but elder abuse can and does happen anywhere,” said Mark Wandersee, executive director of the ElderCare Rights Alliance.
They are among leaders of 51 government and nonprofit agencies, including the Minnesota Board on Aging and the attorney general, that will ask the 2009 Legislature to tighten state laws protecting aged and disabled people.
This website is not intended to provide legal advice as each situation is different and specific factual information must be obtained before an attorney is able to assess the legal questions relevant to your situation.

For the rest of the article see: Sex-abuse cases may lead to law changes

If you or a loved one has suffered an injury or abuse in a nursing home or other care facility that serves the elderly in Minnesota please contact our firm for a free consultation and information regarding the obligations of the facility and your rights as a resident or concerned family member. To contact Attorney Kenneth L. LaBore, directly please send an email to klabore@prslegal.com, or call Ken at 612-767-7503.

December 23, 2008, 10:45 am
Home Health Aides: Why Hire From an Agency?
By Jane Gross
This is the first of a three-part series on home health aides, to be run on consecutive Tuesdays at The New Old Age.
Living out their lives at home, rather than in an assisted living center or a nursing home, is the overwhelming preference of the elderly and their adult children. Remaining at home often means hiring, paying for and supervising aides to help with shopping, cooking, bathing, dressing, eating, toileting and medication management.
This can cost upwards of $150,000 a year for someone who needs 24/7 assistance that is custodial, rather than medical, and thus not covered by Medicare, the universal health care system. Medicare pays for doctors, hospitalizations, surgery, diagnostic tests and medication for those 65-and-over — but not for what is commonly known as long-term care.
Only the impoverished elderly, in some states, are protected from this huge expense by Medicaid, a means-tested program that increasingly is looking for ways to pay for care at home. Medicaid has traditionally paid for care only in skilled nursing facilities, but patients’ preferences and the greater cost of institutional care are driving the trend toward home care coverage.
The Visiting Nurse Service of New York is the nation’s largest not-for-profit provider of home health care. Some of the costs are covered by Medicare and Medicaid, and some by patients and families themselves, either directly out-of-pocket or with long-term care insurance policies, which themselves can be very expensive. These private-pay patients and families are clients of Partners in Care, an affiliate of the Visiting Nurse Service of New York that is run by Marki Flannery.
I asked Ms. Flannery to explain to our readers the value of hiring home health aides through a licensed agency, like Partners in Care, rather than in the so-called “gray market,’’ an over-the-back-fence approach that is far less expensive because there is no middleman, so to speak, but that lacks the protections and supervision provided by an agency.
Ms. Flannery also shares with us her advice on choosing an agency, determining the most economical set-up under the agency framework, what agency aides are paid and what you will pay for them. She will also address why agency adies are restricted in ways that gray market aides aren’t, how to insure a good working relationship and what the future holds for her industry as more and more people live longer and longer.
Today, she will talk about the reasons for using an agency and how to choose one. Her answers to other questions will follow, in posts on Tuesdays over the next two weeks.
Q. Why should someone hire a home health aide from an agency instead of hiring a person recommended by a friend?
A. There is a list of things people consider when they are faced with the need to hire a home health aide to help take care of someone. The list isn’t always in the same priority order, but the items on it are pretty much the same.
For most of us, that list includes:
• Cost: What will I have to pay for each hour of care?
• Flexibility in the job description.
• Loyalty of the employee to me.
• Consistency, meaning the same person comes to the home day after day.
• Security: Can the person be trusted to do the right thing?
• Expertise: Does the person really know how to provide the care he or she is being hired to give to my elderly parent, or my husband or wife?
It is possible that, through your personal network or through an ad you place in your local newspaper, you might find a person to work for you who is the solution to your needs. Many people — even people who work in the health care industry — go that route. Notice I say that you might find a person to work for you, but you aren’t going to find a certified home health aide. You probably aren’t going to find a person who has actually received formal training to do the job you need him or her to do.
And that right there is the difference between hiring a stranger recommended to you by a neighbor and hiring a home health aide who is part of an organization whose business is to properly train home health aides and send them to you when and where you need them, every day. Even more so, we are talking about an organization that is in the business of providing care to you for the long term, as your needs increase and the medical situation gets worse, which is often the case.
It’s sort of like getting an electrical problem fixed in your home. You can hire an unlicensed electrician to do the rewiring. The lights may work, but if you have all the lights on, plus the toaster, and the hair dryer, are you at risk for a blackout? Or worse, an electrical fire? Maybe. Maybe not. But would you take that chance on yourself and your family?
Let’s talk about the list and the things you should consider.
If the only thing you are concerned about is how much you are going to pay per hour, you certainly might be able to negotiate a better deal by hiring someone who used to be a nanny to now provide care to your 85-year-old mother. Hourly rates for this kind of babysitter vary across the country — in New York City, the going rate is about $12 per hour. Hiring a certified home health aide from Partners in Care is going to cost $18.50 an hour in New York City. So is an additional $6.50 an hour worth it to you?
Well, to answer that question, you have to answer some other questions that address the rest of the items on that list:
• Will the home health aide be caring for someone with a diagnosed medical condition?
• If my mom hates the person I hire, can I quickly find a replacement — or even a replacement for the replacement?
• If this person calls in sick or plans a vacation, am I able to work from home to provide care?
• Can I trust this person to do the food shopping for my dad and only buy what he needs and not extras?
• Am I worried that my mom might fall and break her hip — again — and then need to be hospitalized, or do I have an aide who is trained to prevent falls?
• What is the chance that my situation becomes one of those awful newspaper stories of “elder abuse” or financial fraud?
• If my dad’s condition worsens and more medical attention is needed, can I get a registered nurse to come to the home? To talk directly to his doctor? To arrange a plan of care?
• And finally: Do I need help understanding the health care system in this country and who pays for what?
I am the president of a licensed home health care agency and have been in this business for more than 25 years. So, there is no doubt in my mind that the best answer to each of these questions comes when you hire professionals. Time and time again, we’ve seen people start with the babysitter approach and wind up with a catastrophe that costs more and causes harm to loved ones. But we know the informal workforce will always be there — even more now as jobs are harder to find and to keep.
The equation for you is about risk and return. A licensed home health care agency won’t beat the cost on an hourly basis, but if all you are considering is dollars and cents then the risk factor in your equation has just increased. However, considering all the other items on the list will increase your return.
Licensed agencies can find substitutes or replacements for you so you never have to miss a day of work or skip an evening out with friends.
Licensed agencies are in the business of satisfying you, the customer. They don’t want to lose you, so they will work very hard to accommodate your needs.
Licensed agencies offer you the same home health aide day-after-day, provided that is what you want. Licensed agencies work to make the match between you and the home health aide as perfect as possible — so the needs of the patient are understood, the right language is spoken, the right foods can be cooked and the right respect for customs and preferences is shown.
Licensed agencies assign a registered nurse to each patient, and that nurse supervises the aide, monitors the patient’s condition and medications, confers with the physician and is an information resource for you.
But perhaps most importantly, licensed home health care agencies provide you with highly trained expert aides who know how to do their job well before they enter your home. They don’t learn at your expense. Our aides, for example, have been thoroughly interviewed and screened, have had reference checks, and have spent more than 114 hours learning the skills to provide quality care to the people you love. One hundred and fourteen hours of training is a lot of training. And our home health aides have “refresher” training each year.
Q. What factors should we consider when choosing among the different home health care companies?
A. If you have decided to hire a licensed home health care agency to provide a certified home health aide to help you care for your elderly parent, your next logical question is which home health care agency should you hire? Likely, you will ask yourself questions such as: do they all offer the same services; do they all charge the same prices; does one have a better reputation than another?
Part of the answer lies in understanding that there are for-profit home health care agencies and not-for-profit agencies. The biggest difference between those two types of organizations is how they make business decisions. For-profit companies often select the kind of cases that will make them the most money and turn away other cases. Or, they don’t employ certified home health aides at all. Their people are not trained to do the same things for you as are certified aides. A not-for-profit agency doesn’t turn away cases. At Partners in Care, we take short-term cases and long-term complex cases, and we staff them properly to match your needs.
It is also important to learn about the full set of resources that a home health care agency can offer you because health care situations can change overnight. Partners in Care is part of the Visiting Nurse Service of New York, the country’s largest not-for-profit certified home health care organization.
So, if your elderly mom’s condition worsens and care is needed that will be covered by Medicare, we coordinate that care so your mom gets the medical attention she needs and Medicare covers the cost. Or, if your mom needed care that was initially covered by Medicare but now her condition has improved and Medicare will no longer pay, you can transition your mom to care you pay for privately while keeping the same home health aide.

Minnesota Assisted Living providers must also clearly state what services are offered, allowing consumers to compare facilities and choose one with the appropriate level of care. Minnesota’s Assisted Living Bill of Rights creates specific rights for residents of Assisted Living Facilities, including fair and respectful treatment. It further allows the right to choose services and providers. It gives the right to a current Care Plan, to participate in your care and to change medical or other providers if desired. There are safeguards to basic human rights such as: the right to self-determination, to privacy, to safety, to speak out and specifically prohibits harmful treatment.

If you suspect abuse or neglect to any vulnerable adult in an Assisted Living or Nursing Home facility, please contact our firm for information or assistance on how to file a complaint with the Minnesota Department of Health and have the matter investigated.

There is no legitimate reason to oppose the rating of the nursing homes, unless you run or profit from a nursing home that is not compliant

According to PRNewswire-USNewswire via COMTEX, in a statement by Larry Minnix, President and CEO of the American Association of Homes and Services for the Aging:

“AAHSA believes there should be two types of nursing homes: the excellent and the non-existent. Quality should be an automatic public expectation. The five-star rating system is a great idea prematurely implemented. We support a consumer-friendly nursing home rating system based on reliable quality information that the public can understand. But what is being launched tomorrow is poorly planned, prematurely implemented and ham-handedly rolled out.”

Mr. Minnix goes on to state “together, government and providers must be responsible, transparent and accountable for taking care of vulnerable seniors. CMS has key responsibility for defining, measuring and overseeing quality. Data provided by the government must be accurate, reliable, timely, and friendly.”

Minnix is apparently against the Five Star Rating System being implemented by CMS today because in part, “Inspection data is inconsistent”.

However, the inspections are the only way short of a complaint after an incident to evaluate the potential problems related to shortcoming in the facility which lead to deficiencies and violations of the bare minimum standards of care set forth as appropriate for the vulnerable adults in their care.

According the the article Minnix believes that What needs to be improved about the Five-Star Rating system is:
• Immediate development of a data collection tool around staffing.
• Coordination of the rating system with the Advancing Excellence in America’s Nursing Homes campaign.
• Overhaul of the survey and certification system with funding provided for a new system.
• Medicaid and Medicare reimbursement that flows through directly for caregiving. The dollars follow the caregiver should be the mantra.
For the entire story see: AAHSA Statement on CMS Five-Star Rating System for Nursing Homes

These suggestions are based upon an entire reform of the system and without such a change leave the consumer without valuable information on the past performance of a nursing home and problems identified by the nursing home surveyor.

The American Association of Homes and Services for the Aging fails to tell the reader that each and every time there is a violation determined by a Medicare surveyor the facility can appeal the decision, or agree. Most violations are resolved by the facility not only agreeing that there was a problem but a new promise made to the United States of American that they will correct the problems that lead to the substandard rating.

There is no valid reason for the government to keep information from consumer that depends on these facilities for support of life. After all the residents of nursing homes are vulnerable adults by definition and are dependent upon their caregivers. The facilities are paid based on the acuity level of each resident and make a promise to provide the care the resident needs. When the nursing home fails in this duty they should not object to the information being included in a rating to warn the public of the risks associated with their facility.

If you or a loved one has suffered an injury or abuse in a nursing home or other care facility that serves the elderly in Minnesota please contact our firm for a free consultation and information regarding the obligations of the facility and your rights as a resident or concerned family member. To contact Attorney Kenneth L. LaBore, directly please send an email to klabore@prslegal.com, or call Ken at 612-767-7503.

Survey and Certification Process All nursing homes that participate in Medicare and/or Medicaid must be certified as meeting certain Federal requirements. The Centers for Medicare & Medicaid Services (CMS) contracts with States to perform nursing home surveys before nursing homes may be certified. States must conduct these standard surveys at least every 15 months, and the Statewide average interval between surveys must be 12 months or less. Surveys are unannounced and may be conducted at any hour on any day. Surveys assess medical, nursing, and rehabilitative care; dietary and nutrition services; activities and social participation; and sanitation, infection control, and the physical environment.

Surveyors collect data from different sources. They conduct a medical record review based on a case-mix stratified sample of nursing facility residents. They also review plans of care to determine their adequacy, audit residents’ assessments, and review compliance with legal requirements concerning residents’ rights. In addition, surveyors observe facility operations and interview residents, family members, and staff to determine whether facilities are providing appropriate care.

CMS provides guidance on long term care facility survey procedures and protocols through its “State Operations Manual.” The Manual describes the intent of the regulations pertaining to nursing homes as well as the process for determining whether deficiencies have occurred and how to categorize them. Updates to the Manual are issued periodically.

Deficiencies. When a nursing home fails to meet one or more of the Federal requirements, surveyors cite a deficiency. There are 190 possible deficiencies, which fall into the categories listed in the box below.

Deficiency Categories
Resident rights Physician services
Admission, transfer, and discharge rights Rehabilitative services
Resident behavior and facility practices Dental services
Quality of life Pharmacy services
Resident assessment Infection control
Quality of care Physical environment
Nursing services Administration
Dietary services Laboratory and radiology services

Sources: 42 CFR § 483, subpart B; CMS “State Operations Manual,” Appendix PP.

Surveyors also decide the scope and severity of the deficiency based on a matrix that uses the letters “A” through “L.” See Figure 1 on the next page. The scope of the deficiency measures the number of residents potentially or actually affected by the deficiency. The scope rating has three different levels: isolated, pattern, and widespread. Isolated deficiencies occur when one or a very limited number of residents or staff are affected or the situation exists only occasionally. Pattern deficiencies occur when more than a very limited number of residents or staff are affected or the situation occurs repeatedly. Finally, widespread deficiencies occur when the situation is pervasive throughout the facility or potentially affects a large portion of the nursing home’s residents.

The severity rating measures the extent of the health and safety risk to residents. The most serious level, immediate jeopardy, occurs in “a situation in which the provider’s noncompliance with one or more of the requirements of participation has caused, or is likely to cause, serious injury, harm, impairment or death to a resident.” Immediate jeopardy requires the nursing home to take immediate corrective action. The three levels of deficiencies that are not immediate jeopardy are: (1) actual harm that is not immediate jeopardy; (2) no actual harm with a potential for more than minimal harm, but not immediate jeopardy; and (3) no actual harm with a potential for minimal harm.

Letter Grading System:
 Immediate jeopardy to resident health or safety J K L
 Actual harm that is not immediate jeopardy G H I
 No actual harm with a potential for more than minimal harm, but not immediate jeopardy D E F
 No actual harm with potential for minimal harm A B C

For the entire report see: Trends in Nursing Home Deficiences and Complaints
If you or a loved one has suffered an injury or abuse in a nursing home or other care facility that serves the elderly in Minnesota please contact our firm for a free consultation and information regarding the obligations of the facility and your rights as a resident or concerned family member. To contact Attorney Kenneth L. LaBore, directly please send an email to klabore@prslegal.com, or call Ken at 612-767-7503.

The survival time of these frail elderly patients is just half that of a corresponding group who live in the community.

Dr Conal Cunningham, consultant geriatrician at St James’s Hospital, Dublin, and colleagues from the Mercer’s Institute for Research in Ageing followed 1,552 patients discharged from St James’s to nursing homes in 1997-2003. A random sample of 210 patients from the seven-year period was then chosen for detailed analysis.

The results, published in the current issue of the Irish Medical Journal, show the patients had an average age of 82 and almost one in three was female. On average, the patients studied lived for a further 30.3 months following transfer to a nursing home. This compares with a life expectancy of 67 months for an Irish man aged 82, with women of the same age expected to live for 85 months.

“As this period of study was associated with increasing privatisation of nursing home care in the Greater Dublin area, it is encouraging to note there was no significant association between survival and the public/private status of nursing homes,” the authors noted.

The proportion of patients discharged to private nursing homes rose from 25 per cent at the beginning of the study to 56 per cent at the end. But the authors said their study was not sufficiently powerful to compare outcomes in private versus public nursing homes.

Data from the US, Canada and the UK has shown that public nursing homes look after people with more complex problems and have higher staffing levels. Patients in public nursing homes are hospitalised less for dehydration and pneumonia, suggesting they may be a more appropriate choice for the long-term care of more frail patients.

The study found that 7 per cent of patients died within one month of admission to a nursing home, but this initial high mortality rate dropped with time spent in long-term care. Some 25 per cent of patients were dead one year post-discharge.

A Director of Nursing Suzanne Kay Ruddell in a Northeast Portland nursing home was given a sentence of 19 months in prison after she was found guilty of criminal mistreatment by a jury of a resident who suffered broken legs after being dropped. The facts in the case reviewed that the nursing home had failed to provide care for a woman for 5 days after she was dropped sustaining fractures to both legs. The family of the resident has also brought a civil suit against the facility.

For the rest of the story by Michelle Roberts, The Oregonian, see: 19 Months in Prison for Neglect of Nursing Home Patient

As an attorney who handles these types of cases I am glad to see that there are criminal charges brought in this case. The reality is that there are seldom criminal consequences for the serious abuse and neglect many residents endure in nursing homes and other elder care facilities throughout the country. Although the penalty seems very light for the seriousness of the crime, it may still act as a deterrent to other nurses and administrators running nursing homes.

If you or a loved one has suffered an injury or abuse in a nursing home or other care facility that serves the elderly in Minnesota please contact our firm for a free consultation and information regarding the obligations of the facility and your rights as a resident or concerned family member. To contact Attorney Kenneth L. LaBore, directly please send an email to klabore@prslegal.com, or call Ken at 612-767-7503.

By MARTIGA LOHN – 3 days ago ST. PAUL, Minn. (AP) — An aide at a Minnesota nursing home was accused of tormenting six residents sexually, physically and emotionally for months before being fired, according to a state health department report released Wednesday. It’s the second recent investigation of nursing home abuse in the state.The report states that a female aide abused residents at Luther Haven Nursing Home in Montevideo for about six months before a nursing assistant told a supervisor in July what she had seen. The aide’s name was not disclosed.The case echoes another in Albert Lea in southern Minnesota, where six nursing assistants allegedly spit into the mouths of residents with dementia, poked their breasts and touched their genitals. Two female aides face criminal abuse and assault charges; four others were charged as juveniles for not reporting the alleged abuse.At the home in Montevideo, just west of Minneapolis, the aide probed the genitals of a resident with vulvar cancer, performed lap dances for two male residents and made sexual advances toward one of the men, including baring her breasts while getting him ready for bed, the Health Department report said.Five of the six victims have Alzheimer’s disease or other forms of dementia. The female victim with cancer died before the abuse was reported.Other allegations of maltreatment included dropping a resident about four feet onto a bed, slapping a resident while calling her names including a racial slur, and emotionally tormenting a resident by throwing stuffed animals the woman believed to be her children on the floor.The report said the home investigated the incidents and reported them to state authorities as soon as the abuse was revealed July 9. The aide was suspended that day and fired two weeks later.The aide was interviewed by the Health Department and denied the allegations.James Flaherty, an administrator at the home, didn’t immediately return a message left after business hours Wednesday.Authorities said charges against the former aide are unlikely because the victims’ dementia limits their ability to testify.

If you or a loved one has suffered an injury or abuse in a nursing home or other care facility that serves the elderly in Minnesota please contact our firm for a free consultation and information regarding the obligations of the facility and your rights as a resident or concerned family member.  To contact Attorney Kenneth L. LaBore, directly please send an email to klabore@prslegal.com, or call Ken at 612-767-7503