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VOL. 124 | NO. 5 | Thursday, January 8, 2009

City, State Nursing Home Ratings Low

By Rebekah Hearn

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In its first effort to rate the nation’s nursing homes using a ranking system, the Centers for Medicare and Medicaid Services has rated Tennessee third worst in the nation for geriatric care, behind only Georgia and Louisiana.

Thirty percent of Tennessee’s nursing homes received the lowest rating possible: one star out of a potential five-star rating. The Centers for Medicare and Medicaid Services evaluated 16,000 nursing homes nationwide.

In addition, U.S. News & World Report recently released a national survey of nursing homes. In its listing of the 10 Worst States for Nurse Staffing in the area of geriatrics, Tennessee ranked sixth. Of the 10 Worst States for Overall Staffing at these facilities, Tennessee ranked third.

In the Memphis area, four geriatric care facilities received five stars under the new ranking system: Methodist Healthcare SNF, Allen Morgan Health and Rehabilitation Center, Ave Maria Home and Memphis Jewish Home.

But more than four Memphis-area nursing homes received only one star. Those were Overton Park Health Care, Ashton Place Health & Rehab Center, Mid-South Health and Rehabilitation Center, Rainbow Health & Rehab of Memphis, Spring Gate Rehab & Healthcare Center, St. Francis Nursing Home, Golden Living Center Southaven and Grace Healthcare of Cordova.

In its list of the best hospitals for geriatric care, the U.S. News & World Report survey included three Memphis-area hospitals – but they all received low rankings. Methodist Hospitals of Memphis received 14.1 points out of a possible 100, and Saint Francis Hospital received only 7.0 points. Baptist Memorial Hospital-DeSoto in Southaven was also listed and received a score of 12 points. These three facilities were the only Memphis-area hospitals on this particular report. The results of all the surveys are available at www.usnews.com/directories/hospitals/index.html.

Why so bad?

Mark Geller, an attorney and the lead chairperson for the nursing home practice group at Nahon, Saharovich & Trotz PLC, said staffing – or the lack thereof – is a major reason for the problems at nursing homes throughout the state.

“I think that as a general rule, staffing and the training of the staff are two of the main issues involved in poor care,” Geller said. “I don’t think anybody who goes to work in a nursing home goes there to deliberately provide bad care, but if you don’t have enough time to care for all the people you’re supposed to care for, then eventually something’s going to slip through the cracks.”

Geller’s practice consists almost exclusively of nursing home work, and he said it’s “more than a full-time job.”

“Unfortunately, Tennessee is ranked poorly in the nation for a reason, and Memphis is no exception to the overall care that is occurring in Tennessee,” Geller said.

The nursing home practice group at NST consists of four attorneys, including Geller. None of them is short of work. Complaints against nursing homes throughout the state have been on the rise.

In 2007, the state conducted 3,035 complaint surveys. However, in 2008, from January through October, there were 3,694 complaint surveys – an increase of 21.7 percent in that 10-month period compared to the entire previous year.

The ranking system performed by the Centers for Medicare and Medicaid Services is the first of its kind.

“It’s never been officially ranked this way … This is basically the first official ranking of nursing homes,” Geller said.

The Tennessee Health Care Association has issued a statement criticizing the rating system, saying it “oversimplifies a complex subject” and will only “create more confusion for consumers.”

Geller said he agrees the star ranking system should not be the “end-all, be-all” of nursing home evaluations, but he said “it’s a starting point.”

“A home that has a low rating, that should be a warning sign to people that there are issues that need to be addressed,” he said. “Conversely, someplace that has a good rating system should review what they’re doing successfully to maintain that.”

What to look for

Geller co-wrote an article with Laura M. Owings that appeared in the March 2007 issue of the Tennessee Bar Journal titled “The Inherent Unfairness of Arbitration Agreements in Nursing Home Admission Contracts.”

The article reports that long-term geriatric care facilities often include among their admissions paperwork “an arbitration agreement as part of the admission process.”

This agreement, which Geller and Owings wrote is often “buried” in stacks of paperwork, obliges the person signing the documents to go through binding arbitration, rather than the courts, if they have a complaint about abuse or neglect. In binding arbitration, the decision of the arbitrator is often final.

However, the authors said, “Tennessee courts have been reluctant to enforce these arbitration agreements in the nursing home context.”

For example, in Raiteri v. NHC Healthcare/Knoxville Inc., the Tennessee Court of Appeals in December 2003 refused to enforce an arbitration agreement that was part of nursing home admission paperwork.

One of the reasons these agreements are often unenforceable is because that specific part of the paperwork needs to be highlighted, printed in a different or bolded font or in a different color, so the person signing the papers clearly sees and knows what they are agreeing to, Geller said.

In Raiteri v. NHC Healthcare,“the court held that the arbitration provision was unenforceable” because none of those conditions were met, according to the article.

‘Unconscionable’

Nursing home abuse or malpractice cases can still end up in court because either people do not sign the arbitration agreements or the court finds the agreements unfair, Geller said.

He said that since that article was printed, “the courts have stated that a lot of these contracts are … unconscionable.”

“Even if a person signs an arbitration agreement, that doesn’t necessarily mean it’s the end-all, be-all, and you are not allowed to go to court,” Geller said. “We can still fight it, and sometimes successfully win that battle.”

Another article Geller co-wrote in the October 2007 issue of The Best Times, “Nursing Home Selection Warning Signs,” gives people basic facts on choosing the best nursing homes for themselves or their loved ones.

“Make sure you go to the Medicare Web site and be armed with information,” Geller said. “When you go in (to the nursing home), I would, one, try to find a family member who has a loved one there and ask that person. They will tell you, quite frankly, what they think.”

A noticeable lack of staff at the nurses’ station or unattended trays of food or medicine are also signs of trouble, Geller said.

“On some levels, it’s hard to notice just by walking in to see if there’s a problem,” he said. “You have to be willing to dig a little bit more.”

When asked about the Memphis-area nursing homes which received high marks, Geller said he is always happy to hear good ratings.

“I hope, that at some point, I’ll have to go look for a new job,” he said. “Because if people are doing their jobs, then I don’t have one.”

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