New Mexico Nursing Home Advocate News : New Mexico Nursing Home Abuse Lawyers & Attorneys : Harvey Law Firm : Neglect, Resident Rights : Albuquerque, Los Alamos, Santa Fe

Realizing that a loved one needs more care than you can provide is a difficult time families face every day.  Frequently, the decision to place a loved one in a nursing home happens quickly, perhaps after a traumatic event. I think many people do not realize they have access to so much information on the nursing homes near them.

A good starting place is the Centers for Medicaid and Medicare Services (CMS) Website. Here, you will find general information on nursing home resident rights, information about how to pay for nursing home care and other tools on what to look for in a nursing home. You'll also find the "Nursing Home Compare" interactive tool, which enables you to search for nursing homes near you and compare them to others.

CMS gathers data from State Department of Health Surveys and the nursing home itself and then comes up with a rating system. As the site indicates, "more stars are better."

You can ask yourself if this is a place that you would feel comfortable in. And here are a few things to look for and some questions to ask:

1. Does staff seem attentive and patient . . . or rushed and overworked?
2. Has the facility ever been cited for understaffing during an inspection?
3. Do the residents get to choose when to get up in the morning and when to have breakfast?  How about lunch and dinner?
4. Do the residents get to choose when and how to bathe?  Shower or bath at your preferred time?
5. Can friends and family visit anytime - day or night?
6. For a more extensive list of questions to ask and what to look for in a nursing home, download the Medicare Guide to Choosing a Nursing Home.

My suggestion is to concentrate on nursing homes near you. Make a list of potential homes and visit all of them. You wouldn't buy a house without going inside! Do the same when choosing a nursing home for your loved one. And for a more extensive list of questions to ask and what to look for in a nursing home, you may find the Medicare Guide to Choosing a Nursing Home (PDF) quite helpful.

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The United States Department of Justice recently settled a case against the nation’s largest nursing home pharmacy, Omnicare Inc., and drug manufacturer IVAX Pharmaceuticals, which concerned an alleged kickback scheme involving prescription medications for nursing home residents.

Disturbingly, the DOJ suit alleged that one kickback scheme centered on Johnson & Johnson and their prescription anti-psychotic medication, Risperdal. The DOJ alleged that Omnicare sought and received kickbacks from Johnson & Johnson in exchange for recommending that physicians prescribe Risperdal to nursing home patients.

Risperdal is an antipsychotic that is often given to elderly patients who are suffering from dementia. Unfortunately, there are great dangers of using this medication in this population. Also, there is little evidence that's effective for treating Alzheimer’s patients’ aggression or delusions.

However, a recent Times article notes, when nursing homes are short staffed, it may be easier for staff to sedate the patients, or give them antipsychotics, instead of providing additional hands-on care.

Please do not be afraid to ask questions about the number and kinds of medications you or your loved one are taking. 

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One of the most heart-wrenching choices we ever have to face in our lives is deciding whether or not to place a loved one in a nursing home. Finding a clean and well-respected facility with a good record of quality of care is difficult at best. What’s even more surprising is that hidden amongst the intake paperwork is an often-overlooked and seldom-explained sentence, paragraph or separate document that will take away your right to hold the nursing home accountable should abuse or neglect happen to your loved one.

It is a binding arbitration clause and it strips the family of its constitutional right to a jury trial.

If you sign an arbitration clause in a nursing home admission contract, you will have little recourse if your loved one is neglected or abused. Your access to the court and the justice system, a fundamental right, will have been signed away with this clause—often, without your knowledge or understanding.

Arbitration is not inherently bad, and people are free to agree to arbitrate just about anything they could litigate. Often, arbitration results in fewer expensive, drawn out lawsuits, especially in a commercial setting. However, nursing homes have stacked the odds in their favor by inserting language into their intake contracts that makes arbitration mandatory and binding instead of optional and non-binding. Should a dispute arise, this clause means your ability to seek damages and notify the community about the nursing home’s behavior is taken away.

Even worse, the arrangement encourages arbitrators, who naturally want repeat business, to rule in favor of the nursing home –no matter how egregious the neglect. If only the nursing home can choose the arbitrator, how likely is it for the arbitrator to remain neutral? Not all arbitrators are or will be biased, but the potential for abuse exists.

The Harvey Law Firm suggests that families admitting a loved one to a nursing home not sign the arbitration agreement or insist that a new contract be written that, at a minimum, makes arbitration optional and non-binding. Also, if you are drafting or revising a power of attorney for healthcare or legal and financial matters, you can include a clause stating that the power of attorney does not have the authority to agree to binding arbitration on your behalf.

These are the best ways to preserve your rights. Also, please know that if your loved one is already a resident of a nursing home facility, and the facility tries to get them to sign a binding arbitration clause, federal law prohibits the facility from discharging the resident if he or she refuses to sign it.

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Every nursing home resident has the right to choose her own doctor. A nursing home may ask you to consent to have the facility’s medical director be your new primary physician. But, a nursing home resident is not required to accept a facility’s medical director as her new doctor.

Please resist any idea that it will be more convenient for the medical director to be your doctor because he comes to the facility frequently. There are several reasons why you should keep your old doctor even though your new nursing home has a medical director that visits the facility frequently.

First, your doctor already knows you and your health conditions. Your old doctor may be able to remember that you didn’t always live in a nursing home or assisted living facility and may have a better sense of your ability to recover from illness or injury. This is a valuable perspective that a nursing home’s medical director may not have.

A nursing home’s medical director may have come to expect a certain turn-over rate for his nursing home patients and may not invest time or effort into a new relationship that he does not expect to last. In addition, a nursing home medical director probably feels some loyalty to the nursing home because it is a significant source of patients and business. Consciously or unconsciously, a medical director may be reluctant to criticize the nursing home’s care because he doesn’t want to jeopardize this source of business. You want a doctor whose primary loyalty is to you or your loved one and who will be your care advocate.

It is certainly possible that a doctor who is also a medical director will make a good primary care doctor. However, I have observed that some of the best advocates for better nursing home care for all residents are the doctors who visit just a few patients in the nursing home. These doctors simply tend to have higher expectations. You have a right to those higher expectations.

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