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When you become aware of mistreatment of a nursing facility it is important to get your loved one the medical treatment they need and then get into ‘fact collection mode’.  In fact collection mode, you are beginning to collect information about the incident, acts of the nursing home staff and medical condition of your loved one. Doing some preliminary work before you meet with a lawyer will prove for a more effective meeting.

Don’t assume you won’t forget information regarding the incident. As time goes on, your memory will begin to fade. The following steps will help you organize your thoughts during a stressful time and to give an attorney the information he needs to work best on your behalf.

Despite the urge to block out the unpleasant facts and circumstances leading to an injury, much of the information listed below should be obtained as soon after an incident as feasible.  The following information will prove to be valuable in both assessing the facilities responsibility and potentially as evidence to be used at trial.

Photographs– Take pictures of the physical injuries themselves, the area where the incident took place and if possible, the people involved.  In cases involving particularly gruesome medical conditions (pressure sores, amputations, surgical wounds) no medical record can do justice to what your loved one experienced.  Use a real camera as opposed to a camera-phone as the photos will be better quality.

Start Writing– Write down as much information about the incident or events as you can remember. Write some more. Details can be particularly helpful in the course of litigation as many nursing homes have high rates of employee turnover that can make obtaining information difficult.  Concentrate on: names, dates, room numbers, names of facilities and medication dosages (if relevant).

Medical Chart– The medical chart from a nursing home and / or hospital is crucial to determining what a facility may have done or failed to do that resulted in injury or death.  If your loved one sustained an injury that resulted in subsequent medical care at a hospital, these records will be important as well.

Chronology– This does not need to be one’s life story.  However, if a condition developed over time or there are multiple facilities that may responsible for the injury or condition, it is important get the correct names and general dates of admission at health care facilities.  The names of doctors who provided medical can be helpful as well.

Other Relevant documents: Healthcare Power of Attorney, wills, death certificates, pre-injury photographs, autopsy reports and nursing home inspection reports all can be helpful when meeting with an attorney.  Bring them with.

There really is no such thing as providing a lawyer with too much information.  An experienced nursing home lawyer will be able to sort through the materials and determine what information is relevant to your case.  Further, a law office that regularly handles nursing home matters should be able to access much of the above information with the use of properly executed medical authorizations. 

The bottom line is that you should not let your inability to access certain information delay from meeting your meeting with an attorney as soon as you are comfortable.  Meeting with an attorney soon after an incident will provide the best opportunity to secure information relevant to your case.

Jonathan Rosenfeld represents individuals and families in cases against nursing homes and long-term care facilities.  Jonathan is the author of the Nursing Homes Abuse Blog

Admin Note: Thank You Jonathan for your great Guest post. To all my readers, if you have soemthing you would like to say or something you would like to see, please feel free to e-mail me!

JL

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People often ask how they can keep updated in regard to changes in interpretive guidelines for CMS Conditions of Participation.  One of the best ways is to review the CMS Survey & Certification Letter website. 

The website can be found at:
http://www.cms.hhs.gov/SurveyCertificationGenInfo/PMSR/list.asp#TopOfPage
I hope this helps answer your questions. The CMS website is a wealth of information, if you just know where to find it. You will find many other things on the website as well, and if you take some time to explore it, you will find things you never imagined you wanted or needed to know.

JL

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Admin Note: After some further discussion with MSH, I also provided her with the following information. MSH stated under duress she had to sign admission papers saying they would only use particular physicians. I provided this information in hopes that it would be of help to her, and to you if you find yourself in similar circumstances.

I shared certain portions of the federal regulations and the guidance to surveyors with MSH that applied to her situation. The regulation itself is in black, the information in purple is not the regulation, but is guidance CMS uses to interpret the regulation, and my statements are in blue

The resident has a right to a dignified existence, self-determination, and communication with and access to persons and services inside and outside the facility. A facility must protect and promote the rights of each resident, including each of the following rights

 

All residents in long term care facilities have rights guaranteed to them under Federal and State law. Requirements concerning resident rights are specified in §§483.10, 483.12, 483.13, and 483.15. Section 483.10 is intended to lay the foundation for the remaining resident’s rights requirements which cover more specific areas.

These rights include the resident’s right to:
Exercise his or her rights (§483.10(a));
Be informed about what rights and responsibilities he or she has (§483.10(b));
If he or she wishes, have the facility manage his personal funds (§483.10(c));
Choose a physician and treatment and participate in decisions and care planning (§483.10(d));  

 

§483.10(d)(1) Free Choice – The resident has the right to choose a personal attending physician

The right to choose a personal physician does not mean that the physician must or will serve the resident, or that a resident must designate a personal physician. If a physician of the resident’s choosing fails to fulfill a given requirement, such as §483.25(l)(1), Unnecessary drugs; §483.25(l)(2), Antipsychotic drugs; or §483.40, frequency of physician visits, the facility will have the right, after informing the resident, to seek alternate physician participation to assure provision of appropriate and adequate care and treatment. A facility may not place barriers in the way of residents choosing their own physicians. For example, if a resident does not have a physician, or if the resident’s physician becomes unable or unwilling to continue providing care to the resident, the facility must assist the resident in exercising his or her choice in finding another physician.

Before consulting an alternate physician, one mechanism to alleviate a possible problem could involve the facility’s utilization of a peer review process for cases which cannot be satisfactorily resolved by discussion between the medical director and the attending physician. Only after a failed attempt to work with the attending physician or mediate differences in delivery of care should the facility request an alternate physician when requested to do so by the resident or when the physician will not adhere to the regulations.

If it is a condition for admission to a continuing care retirement center (CCR), the requirement for free choice is met if a resident is allowed to choose a personal physician from among those who have practice privileges at the retirement center. (If the facility your loved one is at is not a CCR then this paragraph does not apply – and he/she should not be required to choose from a certain set of physicians)

A resident in a distinct part of a general acute care hospital can choose his/her own physician, unless the hospital requires that physicians with residents in the distinct part have hospital admitting privileges. If this is so, the resident can choose his/her own physician, but cannot have a physician who does not have hospital admitting privileges.

If you feel what they are doing is in violation of this information (they are not allowing the choice of physician), then I suggest you call in a complaint to the department of health for your state, the division that oversees the licensing and certification of nursing homes.

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A patient in a North Carolina nursing home was allowed to fall by a nurse aide. The aide and her friends/coworkers covered it up and for two weeks the patient was untreated for a hip fracture. She was eventually taken to a hospital and there it was found she had a broken hip. Shocked by the news, the family eventually was able to find out what happened. The resident’s family learned what happened only by reviewing follow-up reports from state inspectors.

As we know, rules and regulations get through “channels” and many times they do so without anyone noticing. That has happened again. A recent change in federal rules on nursing home inspections makes it nearly impossible for families to get the information they need to protect their loved ones.

According to the associated press, the changes were put into effect in October 2008 with little notice and without a public comment period. The change is getting sharp criticism for closing off critically important information. Under the new rules, the state inspector follow-up reports can’t be released without specific approval from the chief of CMS.

“It’s an extremely troubling development – it puts a lot of information related to nursing-home inspections off-limits,” said Eric Carlson, director of the Long-Term Care Project of the National Senior Citizens Law Center, a California-based nonprofit group funded in part by the federal Administration on Aging. “I think it’s certainly bad for consumers and the folks who represent them.”

The change bars nursing home surveyors from releasing privileged information to the public without approval from the Director of the Centers for Medicare and Medicaid Services. State employees (the nursing home and hospital surveyors) who perform inspections for the federal government have been reclassified as federal employees as part of the revision. This reclassification is only for this purpose, and not for wages/benefits or other purposes. The surveyors are still state employees. They contract to the Federal government to perform the surey and certification work and as such are required to follow federal standards and procedures, and in this case, are required to follow the federal procedures for the release or non-release of privileged resident/patient information.

Officials at the Department of Health and Human Services said employees have been too burdened by requests for information. Under the rule change, state employees who inspect nursing homes for the federal government are reclassified as federal employees who aren’t allowed to provide “privileged” information or documents to the public without approval from the head of the Centers for Medicare and Medicaid Services.

Requests were diverting employees from certification responsibilities, Michael Leavitt, secretary of the Department of Health and Human Services, said in announcing the change.

Lawyers are now finding out that the new rule has already slowed efforts to represent their clients. It is slowing down the process to get the information they need.

How does this affect you, the consumer? – You can see, it is putting a wall in your path to ensuring your loved ones are getting safe care.

What about those of you who are administrators and staff of nursing homes – now is it affecting you? You might think at first, that it is a good thing, but really, getting information out to the public about both GOOD and BAD state inspections is beneficial to the facility and to those who are wanting to look at where to place their loved ones.  I would think even those who administer nursing homes find the change in rules, without a public comment period, to be a poor decision.

Then look at who has to give the permission – the head of CMS – the head of a federal agency is going to review and provide permission for the hundreds of requests in every state? That sounds like an impossible task, the permission is either going to be given or withheld willy-nilly. What determines who gets permission to see the documents and who doesn’t? Will there be criteria? Who is developing that criteria? What patient rights are being stepped on here?

 

JL

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