It was reported last week about a 1.1 billion dollar verdict in a trial in Arkansas over marketing of the antipsychotic drug Risperdal. An Arkansas jury found that the drug maker, Johnson & Johnson, fraudulently marketed the drug to doctors without telling them about the dangerous effects of the drugs. The verdict comes after two other high-profile trials involving the drug in other courts in the southern US.

Importantly, the drug is often given to the nursing home population, and the side effects have been poorly communicated. The failure to advise the physicians about the real risks and benefits comes down to a letter Johnson and Johnson used in physician meetings to market the drug for off-label uses. 

While the $1.1 billion verdict is large and remarkable, Johnson and Johnson can still appeal the verdict and will likely do so.

By way of full disclosure I am a Democrat and I vote Democratic. I do not intend this to be a political post, but it will be read that way, and I don't want anyone to think I am refusing to acknowledge my biases. This post is about health care funding and Medicaid.  Nearly every SNF depends on Medicaid to meet its expenses and its payroll, and before long, Medicaid may cease to exist. That is something that is looming on the horizon, and the time to get involved for all health care workers is right now.

I want to ask an important question: How do you turn a Republican into a Democrat? 

Generally speaking, Republicans are often viewed as small business owners, substantially more wealthy than others. They have a strong interest in certain social issues (they are generally opposed to abortion, marriage equality, and social programs like Medicaid and Aid for Families with Dependent Children). They tend to be people who believe that the safety net programs are not necessary, and that all people need to do is work hard and they will succeed. Most have never experienced any outright form of discrimination and may in fact believe it does not exist. 

And importantly, these views are strongly held core beliefs. They are honest beliefs. Because of perceived religious or moral reasons these voters often tend to be "one issue" voters, meaning that they vote either against Abortion or for lower taxes, and those single issues are the only ones that matter to them. I understand them, and I do not belittle them. These folks believe what they believe because of the experiences they have had, and because of what they have been taught. But it does not make them right.

Democrats, on the other hand, tend to have a different view about social programs. They recognize that no matter how fair and equitable a society may be, there are still people who, for whatever reason, do not share in the economic fruits of our society. They recognize that without programs like Medicaid, there would be no way for children to get medical care. And, while it may be arguable that parents who do not work should not get special breaks on their children's health care, the fact is that without Medicaid many of those children would not get any health care. Improving access to children's healthcare was a fundamental premise of the Patient Protection and Affordable Care Act. Again, these beliefs are based on experience and the lessons learned in the trenches. They are firmly held honest beliefs. But again, that does not always make them right.

Aside from people who identify with one party or another there are folks who are either uncommitted to a set of ideals, or simply malleable with regard to what person or party gets their vote. These folks are sometimes called independents. Independents share a number of the same views of both parties, but tend to straddle the fence on other issues. They tend not to be one-issue voters. But they do tend to be economically-motivated voters. In other words, while an independent might not vote for a candidate because of his position on health care or defense spending, he will vote against a candidate if that candidate threatens action that ultimately costs him money or threatens his job or future.

So back to the question: how do you turn a Republican into a Democrat? The answer, of course, is to let your party's core beliefs and principles have a profound and negative impact on the economic well being of the voter. Across the country, those who want to "starve government" and radically rein in spending are attempting to effectively destroy the payment system for long-term health care.

Right now, playing out in Alabama, is a terrible game of chicken. The legislature is only in session for another 15 days, and Alabama has an $82 million budget shortfall in Medicaid. As a result pediatricians are not being paid for care delivered months ago. One of them I know has not taken a salary check in 12 weeks because he cannot get paid by the state for Medicaid patients he has already seen and treated. Today they went to the legislature to lobby their elected officials personally, and they were snubbed and rebuffed.  The Tea Party Mantra: no new taxes carried the day.

The pediatricians have advanced a proposal for a $1 tobacco user fee. Alabama tobacco prices are lower than the rest of the nation.  If the state imposed a $1 user fee to fund health care, the state's tobacco prices would still be below the national average.  What the doctors have proposed is a workable solution to a serious problem.

However, the Alabama governor has promised to veto any "new taxes" and as such the Republican majority in the legislature has refused to even put such a measure - which would generate over $200 million for health care in just the first year, completely obliterating the shortfall - on the legislative calendar.  The Speaker of the House recently told a group of pediatricians that he wasn't going to "waste his time." The translation: tough luck doctors!

Conventional wisdom says that physicians should favor the Republican party because they tend to be more affluent and would benefit from the tax policies offered by the Republicans. But pediatricians in particular are finding that voting Republican is like a chicken voting for Colonel Sanders. Republican Congressman Paul Ryan's budget proposal so restricts Medicaid and Medicare that it threatens the lifestyle and income of pediatricians more than almost any other physician's group. Pediatricians tend to see more uninsured, and hence Medicaid-paid patients than do other types of physicians. An internist or oncologist who did not accept Medicaid patients would still have plenty of business. But a pediatrician who does not accept Medicaid soon finds himself unable to pay the electric bill. And it is worth noting that if most SNF's failed to have Medicaid as a source of funding, they would not be able to remain open or care for most of their residents.

The net effect of the Alabama legislature's failure to pay for Medicaid and properly fund it may well be to drive doctors out of the state, and once they're gone, they won't be returning. I know one physician who moved to Alabama, built a nice new house, and planned her future with the belief that Medicaid would continue to fund children's healthcare. She now learns that Alabama's legislature doesn't consider this to be a problem. They refer to it as "her problem." By forcing her to choose between her practice as a pediatrician, and the economic viability of her home and family, they are forcing her to fund and advocate for candidates that have her values and will protect her economic interests. In essence they are turning hundreds of Repubicans into Democrats.

This is why health care policy that focuses on how health care is paid for and stratifies that by private payor (insurance) and public payors (Medicaid, Medicare) is doomed to fail. Health care costs continue to rocket upwards at an alarming pace as medicine makes leaps toward longer and healthier lives. But at some point rhetoric about improving access to health care and the funding of those programs collide with one another. When there is insufficient money in the budget to pay for children's health care, the decision not to pay for it clearly impacts those who provide the care more than those who seek the care. This is because the health care providers have an ethical duty to provide health care, and the legislature responds neither to ethics nor duty. And while Alabama has legislation that protects nursing home funding from cuts in Medicaid, most states do not. The battle that is playing out in Alabama over pediatric medical care could just as easily play out in your state over SNF funding.

Fifty percent of funding for Medicaid programs, and in some states more than fifty percent, comes from federal sources. A federal budget that drastically shrinks this money, or obliterates it altogether, will be an unmitigated disaster for those who provide health care. The time to organize and make your voice heard at the state house and in Congress is now.  If you do not, your industry may well be headed for extinction.

From the Digital Journal comes an excellent treatise on how marketing masked as journalism is being aimed at operators of skilled nursing facilities. 

"For Profit Nursing Homes Pose Threat To Residents Well Being."  In this piece of "journalism" the author - unnamed but apparently affiliated with the Law Office of Scott Warmuth - takes a recent study by the University of Southern California and changes the focus of the article from the statistical variances between for-profit and not-for-profit nursing facilities and concludes that nursing facilities operated for profit pose a threat to residents. What does the study actually say?

The study clearly shows a difference in the number and severity of nursing home deficiencies between for-profit and non-profit nursing homes over the time studied. But the authors do not conclude that the populace should rise up and march on their local for-profit facility with pitchforks and torches. They peg the deficiencies to staffing, particularly RN staffing. The authors conclude that more study is needed on the subject. They also said that greater accountability and quality oversight mechanisms would help improve nursing home care, along with effective funding incentives and sanctions for low staffing and poor quality.

Nowhere do the authors conclude that for-profit nursing homes put patients at risk. While the report is sharply critical of the for profit chains, it stops far short of calling them threats to patient safety.

Over the last few years different advocacy groups have taken scientific research studies and selectively manipulated the data to suit their own needs. The data on global warming is nearly irrefutable, but the oil, gas and hydrocarbon industry finds flaws in the studies. They spin the contents. The article reads "while there have been warmer winters on record, this winter was one of the warmest and the trend is clearly toward warmer temperatures."

The spin from the fossil fuel folks: "Scientists admit this was not the warmest winter on record, casting doubt on global warming."

Certainly lawyers are no different than any other group of marketing and public relations professionals in taking literature and using it for their own purposes, but the article is clearly designed to draw persons looking for help with a nursing home malpractice case to the lawyer's website, which is linked into the article. But lawyers have strict rules regarding what can be said in pursuit of cases, and California Rule 1-400(D)(1) states that no solicitation or communication made by an attorney in California for advertising purposes may contain a statement that is untrue. This marketing masked as journalism comes as close as you can to that prohibition.

The key when reading anything online is to consider the bias of the person writing. Just as a nursing school putting out an article on nursing home staffing may have a bias in favor of higher RN recruitment, so too may an attorney rewriting that same piece for marketing purposes. If in doubt, always go to the actual research and read what the authors wrote.

It is said that the difference between a fairy tale and a war story is that a fairy tale begins with "once upon a time," and a war story begins with "you won't believe this but..." 

In today's blog, I want to talk a little bit about a case I worked on, and to do that, I need to set the stage. You see, I work for a "plaintiff's firm." Normally that means I am litigating, either at the trial court or the appellate court, for the plaintiff, the person bringing the lawsuit. But from time to time, either because of friendship or because of requests by other firm members, I represent the defendant. In some ways, it's pretty fun.

As a lawyer I've had to go up against some really great attorneys in court and on appeal. These lawyers are tough to work against because they're smart and they're cagey. So over the years I've learned - sometimes through the school of hard knocks - the tricks of the defense trade. It has served me quite well.

Recently, I've been dealing with a lot of fraud cases. Fraud is one of the most complex kind of cases a plaintiff can bring. A plaintiff has to show that a lie induced them to take action, and they were harmed as a result. But the law requires the plaintiff to prove the "nine badges" of fraud. Courts set those out as "elements." Under Missouri law, the elements of a claim for fraud are: (1) a representation, (2) its falsity at the time made, (3) its materiality, (4) the speaker's knowledge of the falsity, (5) the speaker's intent that the statements should be acted upon by the other party in the manner contemplated, (6) the other party's ignorance of the falsity, (7) the other party's reliance on the perceived truthfulness of the representation, (8) the right to rely upon the statement, and (9) damages.

So, imagine this chain of events. You go to buy a used car. You ask the dealer if it is mechanically sound, and he says "in my opinion this is a good car." Now, at this point you should probably have run screaming from the dealership because a guy who won't answer a direct question is probably not someone you want to deal with. But let's say you're convinced. You buy the car. You get home and the car quits running. A mechanic tells you that the engine in shot. Do you have a claim for fraud?

No. Because when the dealer offered his "opinion" about the car, he was not stating a fact. He was giving you an opinion, and an opinion is not a fact. See why fraud cases are so hard to prove?

Here's another scenario. You go to buy a piano. The seller says the piano is in good condition, but given what happened to you with your car purchase, you know you can't trust the seller. So you bring along a piano tuner who looks it over and tells you it's a good piano. When you get it home you find it can't be tuned because the soundboard is bad. Can you sue the seller for fraud?

Well, you can sue, but you'll lose. One of the elements of fraud is the buyer's ignorance of the truth and the buyer's right to rely on the statement of the seller.  Under the law in most states, if you make an inspection of the goods and buy them after you inspected them, you can't claim fraud because you have no right to rely on the seller's representation. Ouch, who knew?

For every element of fraud there are a dozen or more defenses. This makes proving fraud a very difficult thing to do. Many attempts fail.

Recently in a real case I handled, Pissed Away LLC v. Stricker (I am not making this up), the issue was whether the buyer of an airplane who made an inspection of the aircraft could claim fraud and breach of contract. The buyer had sent an agent to oversee the purchase of the plane. The agent made an inspection with a pilot who had a long history of flying this type of aircraft. The agent signed a delivery slip that said the aircraft was in the condition suitable for delivery. When the aircraft was delivered to California the buyer suddenly developed buyer's remorse and tried to sue for damages under a claim of fraud.  he Court held otherwise.  It said:

The Court finds as a matter of law that the correct information regarding the misrepresentations and fraud alleged by Pissed Away were reasonably ascertainable by Pissed Away. The parties' contract allowed Pissed Away a full inspection of the aircraft, and allowed Pissed Away to reject the aircraft after inspection without penalty. Pissed Away has alleged no facts suggesting that the aircraft defects that it discovered upon delivery could not have been discovered during the inspection - which occurred before Pissed Away accepted the aircraft. Pissed Away has thus failed to state a claim for negligent misrepresentation or fraudulent inducement.

In this case, the defendant, a physician friend who likes to dabble in aircraft, was honest and had not induced the buyer to take a less-than-suitable aircraft. The buyer simply wanted to undo the deal. His efforts at claiming fraud failed. 

Being accused of fraud is a serious thing. Good lawyering is an important part of defeating any fraud claim. If you have the occasion to be sued for fraud, your first act is to find a good attorney.

It was only a matter of time before the cuts in federal reimbursement translated to cuts in nursing home employment, and now comes news that at least some facilities are laying off staff because of cuts in reimbursement and low census. However, the worst may still be to come.

This week, the Supreme Court begins to hear arguments in the consolidated cases challenging the Patient Protection and Affordable Care Act (PPACA) - what has been labeled as Obamacare. Importantly, the PPACA was a number of different statutes all rolled into one, and the only thing that is really being challenged in the Act is the health care insurance mandate. Essentially that required, as the program was phased in, that everyone would have to have some kind of health insurance.

Health insurance mandates are good for the health care industry. It means insurance pays more of the bills than the federal government, and indigent patients should become less than 1 percent of all hospital bills. Hospitals who get a bigger portion of their bills paid by insurance can, in turn, hire more personnel and expand their services. Yet, without the mandate, there is no way that the central reforms in the statute can be fully implemented. And if that happens, health care as an industry is at risk!

The Supreme Court is a decidedly conservative group, with Republicans having appointed five of the nine justices. While these judges do not always vote as a block, they often do, and if they hear enough during the three days of argument to convince them that the statute is unconstitutional, they are apt to rule it so.

Of course, the prior cases that the court has decided tend to influence the outcome, and there is good law that holds that the PPACA is a valid exercise of congressional power under what is called the "Commerce Clause" of the Constitution. That clause, appearing in section 8 of Article I, says that Congress has the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." 

Commerce clause cases are infrequent at the Supreme Court, with the court bound on one end by the doctrine of "stare decisis" (literally: to stand by decisions) and on the other by the need to adapt the 220 year old document to modern conditions.  The provision of health care in the 1700s was not high on the list of problems considered by the framers of the constitution. There was no internet, no internet petitions, no email, and no websites. As technology and health care have changed, the Constitution must be reinterpreted to remain relevant in the 21^st century.

At the narrow end of the hall, where the court is confined to keep within its precedent, there is ample reason to affirm the health care mandate. Wickard v. Filburn, a 1938 case about wheat farming, is the starting point of the Court's commerce clause analysis.  In that case the Supreme Court set very broad limits on the exercise of the Commerce Clause. If you're interested in the history, and want to read some dated language, you can read the case here. Prior to Wickard the Commerce Clause was used primarily to keep states from erecting barriers to commerce, but after Wickard, the Supreme Court left a clear message:  Congress must be restrained by political rather than judicial means in the exercise of its powers under the clause. If the Court takes this 74 year old precedent seriously, it will affirm the statute. 

But the court has incrementally backed away from this broad power in a number of cases. In 1995, and again in 2000 the court retreated from the Wickard analysis in overturning laws aimed at gun control and violence against women. But the most recent Commerce Clause case, Gonzales v. Raich, upheld the power of Congress to legislate on the subject of locally-grown medicinal marijuana. 

In a Supreme Court opinion there is the "majority" opinion and often separate concurring or dissenting opinions. In this way the judges announce how they would handle the matter if they were writing the majority opinion. These opinions have no real precedential value, but they are often used by lawyers to remind judges of the need to be consistent with what they've written and decided previously. That could be important in this case. 

While Judge Scalia is frequently seen as one of the most conservative of judges, in terms of the Commerce Clause he is more liberal. In Raich he wrote a concurring opinion that said, among other things, this: "Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce." In other words, imposing a mandate for health insurance, while not directly related to commerce, could be seen as a necessity in order to fund health care for the future. As you might imagine the lawyers representing the PPACA have called this quotation to Judge Scalia's attention in their briefing.

No one knows for sure what the Supreme Court will decide. Court observers will listen to the arguments and offer their opinions about what the judges say and the questions they ask. But in truth, no one can predict the outcome at this point. If the Court strikes down the PPACA, be prepared. Health care jobs are likely to be a lot less secure going forward.

If you've followed the mess that Washington made of the budget process during the last fiscal year, you know that "entitlement programs" are headed for the chopping block. But, of course, it depends on who you consider "entitled" as whether those cuts are a good thing or a bad thing.  Many of the pundits frame the "entitlement" issue in terms of welfare and other federal "safety net" programs. 

Similarly, in state legislatures the state-federal program known as Medicaid has seen the same kind of attention - all of it bad. As budgets grow tighter and tighter, it is entitlement programs that find themselves on the chopping block. Of course, for people on Medicare and Social Security, who paid premiums for scores of years so that they could retire in relative security, it isn't so much an issue of "entitlement" as "we earned this."

Some of the pundits suggest that entitlements like unemployment compensation could be fixed simply by creating jobs, while others recognize that there are sufficient jobs in the economy, but the pay scales associated with them are such that many of these jobs are less than attractive. In the Great Recession that began in 2004, most of the jobs lost were in manufacturing and industry where pay is typically higher than minimum wage (sometimes triple or quadruple it), and most of the jobs created since the Recession have been in the service sector (think McDonalds) and typically pay poorly. But lost in the talk of cutting entitlements is what the impact of that is on the long-term care industry.

Some estimates have the skilled nursing sector facing cuts of $6.35 billion in the next nine years, after analyzing data from the Congressional Budget Office's (CBO) recently released March 2012 Medicare Baseline, which reveals projected cuts in Medicare payments to skilled nursing facilities this year compared to 2011.  To give you an idea of how much money that is, one million dollar bills stacked on top of each other is 0.67 miles high. A billion dollars is 67 miles high.  That is a lot of money missing from the coffers of skilled nursing facilities.

Prior to the 1960s and the changes that came with Medicare and Medicaid, most nursing home care was provided either at charity institutions run by religious orders, or was provided at home in the end-stages of life.  Society was different then too.  Most women did not work outside the home. There were caregivers available in the home to undertake these tasks.  But in today's society where both parents in most households work, elderly parents cannot assume that they'll be taken care of by their children. Some have opted for private insurance, while others have decided to assume that Medicare will pay their bills.

This has created two classes of SNF resident. Those that are privately insured with long-term care insurance, and those that are cared for under state Medicaid programs. 

Very few seniors today have long-term care insurance. Most simply cannot afford it if they are dependent on Social Security. And those that do have it are seeing their premiums skyrocket every year. Unlike the federal healthcare reform package that reformed health insurance, long-term care insurance is largely regulated (and regulated poorly) by the states.

Medicaid is a payor of last resort, so your typical Medicaid patient must liquidate their assets in order to qualify. That means that the patient or her family must sell off the house, farm, equipment, and jewelry in order to pay down to the point where Medicaid will provide care. When lawsuits or settlements recover money for patients on Medicaid, Medicaid gets paid back for what it paid for their care. 

The largest part of Medicaid spending nationwide is for skilled nursing. The elderly and disabled account for the majority of Medicaid spending. In 2007, 10 percent, or 5.8 million enrollees, were elderly, accounting for 25 percent of annual Medicaid spending, or $75 billion. Medicaid is the largest source of public assistance for nursing homes. In 2009, Medicaid paid for 40 percent of all nursing home spending in the US.  When there is a $6 billion shortfall in revenue by the payor that pays 40% of the costs, that is sure to cause two things to happen: (1) nursing home daily rates for private insurers will climb; and (2) staffing and expenses at nursing homes across the country will be cut.

Add to this problem the fact that a majority of the baby boomers born between 1940 and 1960 are going to outpace the number of nursing home beds available and you have a crisis in the making. But as yet, because of perceived budget shortfalls at the federal and state levels, no one is even beginning to talk about this problem.

There is no easy solution to this issue. It will require Congress to set aside sufficient money to care for seniors, and it will not be an easy fix to get through. But if someone doesn't own up to the problem and start doing something about it, the LTC industry as we know it will be radically different in 10 years.

Nursing home advocates in Illinois are pushing a rule that they claim will increase the amount of care and supervision that nursing home residents get. The rule, which requires that every resident receive 46 minutes of direct patient care from a registered nurse every day (with a phase in period to 2014), appears simple enough. It is aimed at improving patient care. The question is, how would such a rule be enforced, and is it wise public policy?

The key factor that should determine how much care a nursing home resident gets, and who should provide that care, is the patient's acuity and need for care. Resident-focused acuity-based staffing models are the coming trend as the government is already working on remuneration that will be based on these factors.

This only makes sense. An ambulatory patient with simple dementia, who is capable of eating, dressing, and most other activities of daily living, probably doesn't need their hand held for 46 minutes every day by a registered nurse. It would be overly invasive and provide little benefit.

On the other hand, patients on mechanical ventilators, patients with feeding tubes, patients with brittle diabetes may require more than 46 minutes of care every day. So an across the board mandate, while it sounds like a simple and elegant fix for staffing shortages at nursing facilities, is really no more than the kind of one-size-fits-none legislation that causes more harm than good when implemented.

Don't get me wrong, I have long advocated that registered nurses need to be more active in patient care at skilled nursing facilities and that they should be the ones directing the care to the residents and in some cases, the ones directly providing it. Most facilities are required to have only one RN on staff every shift.

Increasing the number of RNs is likely to - but by no means certain to - improve the quality of care at the bedside. But it is also likely to increase cost and with Medicaid and Medicare implementing payment reductions, such a staffing mandate comes at just the wrong time.

The key question, and the one that likely few of the legislators have thought about, is how this kind of rule is enforced. In most cases, it's going to be enforced mathematically. In other words, there won't be a state investigator with a stopwatch at the patient's bedside to determine if they got their allotted 46 minutes. Rather, the inspector will come in, look at the number of residents (100), the number of nurses on duty on any given day (3 per shift) and divide the number of nursing hours (3 x 24 = 72) by the number of residents (100) and conclude that each resident got 0.72 hours (43 minutes) of care from an RN on that day. Even though every patient got great care, a citation will issue. And therein lies the fundamental problem of such a rule. Many of those residents won't need 43 minutes of care, let alone 46.

A well-run, well-administered facility with a good Director of Nursing and competent LPNs and aides can deliver great care by assigning tasks based on patient acuity and patient needs. It makes no sense to require 46 minutes of RN care when the resident doesn't need that care. And it makes no sense to give a facility a free pass when it doesn't provide adequate care even though it provides 46 minutes of RN time. Inspectors may think they have a sword, but it can just as easily be a shield. A facility that was woefully understaffed with direct care personnel (aides and LPNs) could likely escape sanction by pointing to the number of RNs on staff.

And just because an RN is on staff doesn't mean she's providing bedside care. In fact, there may be less RN care the more RNs there are on duty and there would be no way for state inspectors to discover that other than camping out in a patient's room with a stopwatch and a legal tablet.

While I understand the need to "do something" to improve patient care, it is far better to do something smart than to just do something. Let's hope these kind of mandates are rejected and that patient-focused and acuity based staffing systems are adopted.

Across the country there are hundreds of SNFs that are state-operated veteran's nursing homes. These facilities provide long-term care to state residents who were honorably discharged from the military. Most of these facilities are operated as a state government enterprise, but recently there has been an effort to "privatize" these facilities.

When a state "privatizes" a facility it effectively eliminates the jobs of state employees. A corporate entity takes over the job of managing the facility and providing the care to residents. In return it receives a specific yearly fee. From that fee employees are hired. Because the fee is less than the amount currently being paid, staffing is affected. Either fewer caregivers are hired, or caregivers willing to accept less pay are hired. In some cases, both occurs. The result is a wholesale house cleaning with regard to staffing.

Long-term care residents develop relationships with their caregivers. The caregivers learn the residents. This learning creates better healthcare, and the trust developed between residents and staff improves the quality of the resident's lives. So when a facility is privatized, there are significant risks that negative effects will befall the residents.

Privatization has created a great deal of controversy in some places. In Grand Rapids, Michigan, the state's Veterans Home has had its own share of controversies related to how care is provided to veterans. The veterans home employees are unionized workers. The facility has tried to replace many of those workers with non-unionized workers. The situation boiled up recently when a resident being attended by one of the non-state workers was allowed to fall and break his neck. The family alleged that a union worker who knew the resident would never have allowed it to happen.

As the union-busting battle between state workers and others raged on, the residents at the Grand Rapids home themselves weighed in, filing a lawsuit intended to stop the layoff of hundreds of union workers. A local judge granted an injunction and the state appealed. How it will all play out is anyone's guess.

There is a perception that state employee unions cost governmental agencies more than privately-employed aides and nurses. In fact, the opposite may be true when risk management is factored in. Long term employees working in facilities know patients as mentioned above, and they know what must be done and what precautions must be taken, and therefore tend to do a better job delivering care. Lawsuits like the one over the broken neck are actually less likely when the facility is in the hands of workers who know the patients and their problems.

What is amazing is how a need to cut funding and a need to save money at the state level could be so much about the money and so little about the care offered to the veterans. All of those veterans paid a price with their service that can't be measured in money. Soldiers in the field during World War II, Korean, and Vietnam endured great hardships. They battled the enemy along with disease, environmental conditions, and sometimes their political leadership. But they wore their uniforms with pride and served their country well. In return, their country made them promises. One of those promises was care through the VA and in some states, access to veterans homes. Now it is reneging on those promises.

It's just my personal opinion, as a former soldier, that when politicians stab veterans in the back by cutting funding to their homes, that they are making a statement that these veteran's sacrifices meant nothing. That is shameful and should carry a political cost.

Numerous studies have pointed out that care is better in not-for-profit nursing facilities than in facilities that are operated for profit. Media reports on these studies seem to emphasize that placing a patient in a for-profit nursing home is tantamount to abuse and neglect. I don't buy this for one minute.

Mark Twain is credited with the observation that there are lies, damned lies, and then there are statistics. Other pundits have speculated that 95 percent of statistics are made up on the spot. I am not sure that this is not really true. The fact is that judging a facility as worthy of caring for a loved one should not be based solely on the funding source for the nursing facility.

Now, it is true that back in the 1990s someone looked at the birth rates from the 1940s and 1950s and determined that the baby boomers were going to be needing long term care, and immediately suggested that investors get into nursing homes so that they could capture the expected boom in these facilities.  It was about this same time that the for-profit healthcare companies (HCA, Tenet, etc.) sprang up with the idea that healthcare could be provided for fun and profit. 

However, healthcare workers have their own ethical standards. While investors and venture capitalists produced business models and staffing plans that would maximize the return on their revenue, doctors, nurses, therapists and other clinicians balked at the way for-profit healthcare was being run. The argument was simple:  this is health care, not General Motors. For the next ten years or so healthcare employees and entrepreneurs battled back and forth over how to operate these SNF facilities as for profit entities.

While all this was going on the not-for-profit entities were continuing to provide good care, and were doing it consistently for a lower cost and with better long term results. Until a few years ago no one ever thought to ask why. The concensus in the studies seems to be that people who work at not-for-profit facilities are happier in their jobs and feel they are better appreciated in the non-profit setting. 

The biggest problem with for-profit nursing homes is that there are really two tiers of SNF operators: national chain facilities and small time regional operators.

National chains tend to work hard at minimizing their risks. They often seek arbitration agreements to protect them from lawsuits. They enter into arbitration agreements with employees. They buy goods and materials in bulk and save on volume purchases. They standardize forms, assessments, and policies and procedures with regard to standard of care. In short, they try hard to make the SNF in Cleveland operate the same way as the SNF in Wellsville, Missouri. 

They can purchase and therefore tend to offer better employee benefits. And they try to hire management that aligns itself with the corporate goals. There is not a single national nursing home chain that does not put quality of care high on its list of priorities. When problems arise, they get tackled and usually steps are taken to prevent them from recurring.

The same is not true with regard to smaller regional investors who hold 2 to 10 nursing facilities. Often coordination between facilities is poor to nonexistent. Staff are hired based on economic factors. Staffing is cut to the lowest possible number even if that means quality of care suffers. Facilities are purchased or built in places where access to long term care is in short supply, and where there will always be a steady supply of patients. And management in these institutions often makes profit - not the quality of care - the yardstick by which everything else is measured.

When I was busy litigating the cases against American Healthcare Management in St. Louis in the late 1990s, the apologists for the company always liked to emphasize that this was America and that making a profit was a good thing. It was hard to see making a profit as a good thing when ants were crawling all over a frail elderly woman with congestive heart failure.  But that care resulted not from nurses who weren't trying their hardest: it resulted from not having enough nurses employed in the first place.

Recently I have been litigating a case against a non-profit entity where, because of a failure of management, nurses and aides were allowed to retaliate against the mother of a former DON at the facility. The photos of the bruising are nauseating. The abuse can't be justified at any level

Bad care comes about not as a result of whether a facility is operated for a profit or as a not-for-profit. It comes about because of two things: inadequate staffing and improper supervision of employees. While some may argue that these two factors are more likely to occur at a for profit facility, I would disagree. They are more apt to occur at a facility where managers don't do their job.

If you work in a for-profit facility that is well run, you know what I'm saying here is true. If you work in a non-profit that is poorly run, you also get it.  It is truly a bad thing that so many of the studies done never really talk to the rank and file who deliver care in facilities, because if they did, they would find that job satisfaction and being happy with your work comes more from who you work with than where you work with them.

Unless you've been living under a rock like the famous characters in the Geico commercial, you are likely aware that the US, indeed the entire worldwide economy, is in a bit of a recession. Recessions are supposed to work like the circuit breaker on your electrical box. They are supposed to be a way for economies to reset after a period of boom. 

There have been a number of recessions since 1929, the last true "depression" and each one has brought economic hard times to two very different groups: the very rich and the middle class. 

Because the very wealthy have more money invested than the middle class does, the very wealthy suffer first and suffer worst in terms of the amount of money they lose. But they also recover the quickest and suffer the least real harm: none of them has to worry about making the mortgage payment. The middle class is often affected last, and the effects tend to last the longest because a recession causes job losses in industries that are manpower-heavy. 

One of the most manpower-heavy industries is the skilled nursing industry. So in a recession wage growth simply doesn't happen, jobs are lost, and it is more difficult to find jobs. In the SNF industry so long as there is adequate funding and adequate census, most of the facilities simply cut back on benefits or other costs and weather the storm reasonably well. The same can be said for hospitals: while they may freeze hiring and stop expansion, they continue to operate mostly as normal.

What this all means is that a SNF or a hospital can usually weather a recession with just a good management team watching the costs and being careful about the risks undertaken. But when a recession is coupled with a congressional jihad against "social welfare" programs, such that reimbursement is slashed 11 percent across the board, no job in long-term care is safe.

For the last thirty years or so Congress has been spending like a drunken sailor. At the end of the Clinton administration when the budget was balanced and there was no deficit, this spending was not an issue. When the Iraq and Afghanistan wars started to create a huge deficit, it became problematic. Now everyone recognizes that we cannot do business the way we did in 1990. And therein lies the problem.

SNFs are being hit on all sides. Medicare and Medicaid are slashing their reimbursement rates across the board.  Employees have had little real wage growth over the last seven years, and more and more seniors are being cared for at home because very few people have long term care insurance. This tripartite hit of reimbursement, recession and reduced census has pushed many facilities right to the doorstep of the bankruptcy courthouse.

It is the job of lobbying groups to push the agendas of different industries. The oil and gas lobbyists reigned supreme during the Bush years, and the environmentalists have had their say during the current administration. This is how Washington operates. But seniors and the LTC industry have their advocates too. The AARP is continuing to push to restore Medicare funding, and a recent survey found that across the board more than 75 percent of the country opposed cuts in Medicare and Medicaid. But these paid lobbyists are not enough. Every employee has a stake in this fight too!

This is really one of those times when the letters of constituents make a difference. While a phone call is immediate, a letter is more difficult to ignore. I suggest that every SNF employee write a letter to their congressman or senator that argues as follows:

• Seniors paid into Medicare and Social Security all their life.
• They were paying for insurance that, in many cases because of early death, they didn't use.
• Congress did not hold the money in trust the way it should have.
• Seniors are owed benefits that provide for adequate care under Medicare and Medicaid.
• Cutting funding places jobs at risk, which places patient care at risk.
• No amount of federal or state regulation can alter the laws of physics; one nurse cannot be in two paces at once.
• If Congress does not act now to restore funding to these long term care programs, the effect will be felt not on Wall Street or Main Street, but rather, in bed 317 at Shady Valley Nursing Home.
• The resident in that bed paid her taxes and her Medicare all her life, and Congress is breaching its promise to our seniors with these dangerous cuts.

You can find the name and address of your congressional representatives here.

While few residents ever file complaints, often their families do. And it is quite painful to be the "victim" of such a complaint. Inspectors may ask tough questions, a person's character and integrity may be questioned, and a staff worker may in fact be called a liar by the investigator, the patient, or the patient's family. It is not the kind of thing anyone ever wants to experience.

But, as hard as it is, the far harder thing is to avoid retaliation after such an incident. If a resident calls you a thief, a liar, or a sexual deviant, even the fact that the resident is demented does not really ease the pain for the person who never laid a hand on the patient. 

Once, early in my career as a therapist, I had an employee health screen come back with a marker for syphilis. I knew I didn't have the disease, and later tests proved it. But during those few days when the tests were pending, no one really wanted to shake my hand. It's much the same when you're accused of doing something to a resident. No one wants to be your friend, because if the charges are substantiated, you're probably not only losing your job, you may be going to jail.

If such an event occurs, you should immediately be asked to be taken off the list to care for the patient involved, and you should make every effort never to care for that patient again if that is possible in your situation. This is important because no matter  how hard you try to be fair, if you are asked to do something for this patient, you are much more likely to say no. That's only human nature. And if you never have charge of that patient again, it's very unlikely anyone will be able to claim your harmed them.

Also of importance, when there is a no way to avoid caring for a patient who has made an unsubstantiated abuse complaint, you should never be alone in the patient's room. If you cannot bring another clinician with you, at the very least leave the door open and limit the time you are in the room.

As a plaintiff's attorney one of the most frequent allegations I hear from nursing home residents is that after they made a report about something, they were retaliated against. For example, in 1998 I obtained a temporary injunction against a nursing home that was threatening to transfer a patient. The circuit court stopped the proposed transfer to consider the arguments of the parties. The nursing home dropped its challenge and allowed the patient to remain. Six days later the patient was found with four broken ribs, three crushed vertebrae, and a shoe-shaped bruise in the middle of the patient's back. The allegation that she was retaliated against for making a complaint was ultimately never determined because of a settlement.

Sometimes it is not the patient who complains, but a relative or friend. When that happens it is less likely to create a situation where there would be retaliation. But still, precautions should always be taken.

Finally, if you are involved in a patient incident that results in a bruise to a patient (for example, you catch a patient who is falling and your grip results in a bruise on the patient's skin), for heaven's sake document how the bruise occurred so that in the event abuse is suspected, you will be free from an allegation of abuse or neglect. Documentation not only helps the patient, it protects you. It should never be ignored.

One of the things that nearly every Republican candidate for president in recent months has put forth is the idea that "regulations" are somehow killing American productivity and stifling business growth. Anyone who has ever had to read through a section of IRS regulations dealing with taxes understands that regulations can be a pain, but the real question is, would you really want to live without them? Regulations do serve a purpose.

The process of cabinet level departments issuing regulations is governed in part by statutes and in part by the Administrative Procedure Act. Before a regulation can be enforced with the force of law, it has to be published, and those affected have to get an opportunity to comment on the regulations. Those comments often point out where exceptions should be made. The final regulations tend to be much more fair because of this "notice and comment" procedure. But if a business is aggrieved by a regulation, it still has the right to sue under the Administrative Procedure Act to invalidate the regulation, and literally thousands of such challenges are filed every year to different regulations across the country.

While the idea of throwing out all the regulations - put forth by a number of the Republican candidates for president this year - may sound like a great idea, in practice, it won't work.  First, some statutes (like the Stark statute on physician self-referral) mandate that regulations provide "safe harbors" to guide physicians in their dealings. If you stop making regulations in that situation, you are effectively violating the terms of the statute.

Then there are regulations like those that govern nursing homes. 42 CFR 483.10 and other regulations provide guidance to nursing facilities on what the federal law expects of them in meeting patient needs. Surveyors base their findings on these regulations. Everyone knows how the tests are graded, and what has to be done. The regulations expand on the federal statutes that provide for the regulation of nursing homes under Title 42. 

In 1987, President Ronald Reagan signed into law the first major revision of the federal standards for nursing home care since the 1965 creation of both Medicare and Medicaid 42 U.S.C1396r, 42 U.S.C. 1395i-3.The landmark legislation changed forever society's legal expectations of nursing homes and their care. Long term care facilities wanting Medicare or Medicaid funding are to provide services so that each resident can "attain and maintain her highest practicable physical, mental, and psycho- social well-being." 

The regulations found at 42 CFR § 483 help define the scope of the Act. So, a facility might think that getting rid of those standards would mean that much of the paperwork and all of the resident's rights would be effectively eliminated. But the problem is that eliminating the regulation doesn't eliminate the statute, and the statute is much more vague than the regulation.  Specifically, the statute says "A skilled nursing facility must care for its residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident." 

The regulations provide context and spell out what is and isn't covered by the scope of the statute by the people charged with enforcing that statute. Without specific regulations to guide the enforcement, a federal surveyor in California might apply different standards than one in New Hampshire. What would be permissible in Texas would be a violation of the law in Illinois. The result would be that nursing homes would be left to guess about what was, and what was not meant by the phrase "promote maintenance or enhancement of the quality of life." In short, under the same facts different facilities in different jurisdictions would get different results.

The federal government each year spends millions of dollars on regulations and on enforcement within Medicare, Medicaid, and other federal programs. The Department of Justice spends thousands of hours of attorney time defending these regulations and offering legal advice to regulators. The costs are not a minor consideration. But at the end of the day a nursing facility knows the rules and how to obey them, something that might not be the case if regulations were completely removed. Without regulations the only thing that stands between a facility and a federal lawsuit might well be the good intentions of an overly zealous prosecutor. 

Today I hope you will permit me to deviate from my normal legal topics and delve into the area of personal success. I hope what I have to say might motivate you!

I am writing this on an IPad at 39,000 feet because I am on my way to Las Vegas to run in the Great Santa Run for Opportunity Village, a Las Vegas charity. How does a guy who at the beginning of the year weighed close to 240 with unchecked Diabetes get into position to run 3.2 miles?  With Goals and objectives.

At the beginning of the year my wife and I decided we wanted to be more healthy, to exercise more, and to increase our cardiovascular endurance. So my wife found an App called Couch to 5K in the App Store and started running. The idea was to be in a position in as few as 8 weeks to be ready to run a 5K.

Now, such apps are designed for 20 and 30 year olds, not a guy 56 and a gal 51. But we started on the apps and the first one minute run was a long one, even though we got 90 seconds to recover. Each week the run became more difficult. Some weeks we repeated the week like truant school children. But eventually we graduated running 2.5 miles in 30 minutes. Then we got Bridge to Ten K and started with that. Now we run 3 fifteen minute runs and exceed our 3.2 mile goal every week three times a week

Now, we were not stupid. We went to our doctors and asked first if we could do this. At the beginning of the year doctors are used to being asked about exercise programs and they said "sure, that will be fine." I suspect that neither one thought this New Years resolution would make it past Valentines Day. But they didn't count on the power of two partners committed to each other holding each other accountable. This Fall when I went back to see my doctor and told him I was running in The Great Santa 5K, and told him how much I had learned to enjoy running, he threatened me with a Psych consult.

If you want to get healthy, the first step is to make that your objective and realize that you didn't get out of shape in one week and you won't get back in shape in one week. Set reasonable goals. Start, like we did, walking. When you're walking at a brisk pace, go to the Couch to 5K app and start running. Don't do more than you can do, and if you have chest or arm pain for heavens sake stop and see a doctor. Get a partner to work with you and hold you accountable. A failure is a failure on them too.  On days when you don't feel like running or walking, they will and they will push you on.

Celebrate reaching your goals. Once we made it to the end of the Couch to 5K app, we celebrated by booking Business Class tickets to Vegas.  Friday we pick up our Santa suits and on Saturday we run our firstborn"official" 5K.  I can't tell you how great it feels to reach this milestone, and I wish the same for you in the coming year.

The sad debacle that was Michael Jackson’s death, and the ignominious end of Joe Paterno’s stellar coaching career have some important moral lessons for health care providers that should not be lost in the hoopla of media coverage of both events. Central to this discussion will be a reminder that the phrase “It’s not the crime, it’s the cover-up” originated with Watergate, an era in American history that saw numerous careers ruined by an ill-fated attempt to break rules and cover it up.

Those of you just now getting into health care may not recall scenes from Senate testimony during the congressional investigations of Watergate. Rose Mary Woods, a secretary, told a rather convoluted story and demonstrated some significant gymnastic abilities when she demonstrated how she accidentally erased 18 and a half minutes of tape by pressing the wrong foot pedal while answering the phone.  When the entire cover-up was revealed, thanks to information provided to the media by various sources, President Nixon resigned.

Americans, as a group, have tolerated a lot of really stupid things from their government and their elected officials.  Bill Clinton kept his presidency intact by only a few votes after being caught in an affair in the White House.  But Anthony Weiner, Jonathan Edwards, and now Herman Cain all had their political chances destroyed or affected by allegations of extramarital affairs.  Public outrage seems most pointed at those like Weiner and Edwards who make plausible denials only to make later implausible and sometimes tearful confessions.  The public seems to say that there is forgiveness for stupid mistakes that are owned-up to, but not for mistakes that you try to hide.  The great comedian Flip Wilson used to say that “a lie is as good as the truth if you can get someone to believe it.”  But, that just isn’t true.

Early in my career a colleague missed the deadline for filing an appeal. It was a simple miscalculation of dates. But rather than admit the error and attempt to fix the problem, the attorney lied to the Court of Appeals, and the Court rejected his appeal. I was able to get the appeal reinstated by simply telling the truth. As a result I frequently remind lawyers in ethics classes that it’s better to fail on the truth than succeed on a lie, because a lie will always find a way to come back and haunt you later.

This brings us to the two examples of how what seems to be the right path at the time sometimes takes on a different view later.   Indeed, once someone powerful has fallen, whistleblowers seem to come out of the woodwork to point to other errors in judgment.  In Joe Paterno’s case I have written extensively that he did nothing wrong in reporting the misconduct of Mr. Sandusky, and that the organization failed in its obligations to deal with his report. I believe that. 

In spite of that, Mr. Paterno, who now suffers from cancer, had an insult-to-injury moment last week when the former chief disciplinarian from Penn State said that Paterno interfered in discipline issues involving football players. One of the events cited was a situation where six football players were charged in an assault. 

Paterno, again, did nothing wrong. The only way to read these reports is to conclude that someone should be flagged for a “late hit” here. Paterno argued to the University that it’s very difficult for six team members to play together and trust each other on the field when they are being asked to stab each other in the back in the courtroom. He argued that he could mete out discipline to his players better and more effectively than a judicial administrator at the college. Anyone who has ever played for a tough coach knows that Paterno is right. The school agreed with him and implemented his recommendations. Yet, when this was reported in the Wall Street Journal, it came across as Paterno seeking special treatment and trying to cover-up crimes by his players. A fair reading of the report, however, suggests otherwise. 

Nevertheless, therein lies the lesson for health care workers. When a manager or nursing home worker takes concerted action to cover up wrongdoing, either out of concern for state sanctions or fear of litigation, there are always more people who know about the cover-up than anyone suspects, and the chance that the cover-up will one day come to light is very high. And when it does, just like Murphy’s Law suggests, it will be at the worst possible time. The impact it has will most likely tie a red satin bow on liability for the plaintiffs. Any lawyer will tell you it is far easier to defend the truth. The truth can be explained. A lie, no matter how clever or well intentioned, can never be explained as anything but a lie.

Indeed, the sad debacle that was Conrad Murray’s care of Michael Jackson makes this point plain. Murray secretly recorded his patient. He violated every ethical and medical norm in treating him with dangerous drugs. He lied to get the drugs. After Mr. Jackson’s tragic death, he lied to cover up his involvement, and lied to investigators and hid evidence. In the end, the judge had no mercy on him.

Juries feel the same way. When a facility goes out of its way to engage in a cover up, it’s like taking out a sign along the roadway that says “We Are Negligent! – Spank Us!” Juries reserve the harshest penalties for those defendants who lie!  But it goes beyond the jury.

The rule of 150 says that for every customer who has a positive or negative experience with a business, that person will tell 150 others about it during the course of the next year. Even in a poorly attended trial there are at least 18 people in the courtroom at any one time. That means that 2700 people will learn about what happened at that trial over the course of the next year. That is the kind of word-of-mouth buzz that can destroy a facility’s reputation and harm its census. Combine that with allegations of a coverup, and you have the makings of a very bad outcome.

Smart lawyers fight about what matters. Even where a facility makes a terrible error in judgment such that liability is clear, there can be honest debate about the amount of damages. And sometimes plaintiffs shoot for the moon and wind up getting very little.  There is almost never any reason to engage in a cover up and tell lies if competent counsel are engaged.

And any lawyer who counsels a witness to lie, or directs a cover-up, should be reported to the Bar in their state. Such conduct is unethical and illegal.

Mr. Jones is 88 years old. Because of his mild dementia his family placed him at a nursing facility to ensure he received the best possible care and had good nutrition. Mr. Jones had been a long time member of the community, running the hardware store and investing in one of the first cell phone companies. He had placed most of his assets into a trust that now paid for his nursing home care.

Mr. Jones married daughter is the trustee. Like most folks with elderly parents, she is herself a grandparent and works part time for a bakery. Once or twice a month she will spend some time reconciling accounts and paying bills for Mr. Jones through his trust. But because he still has friends who write to him, his mail goes directly to the nursing facility.

Mr. Jones had been at the facility for eleven months when his daughter's evening meal was disrupted by a knock on the door. A sheriff handed her a paper that confused her. The lawsuit claimed that her father had run up a $13,000 American Express bill.  American Express wanted to be paid.  Four nights later the same sheriff brought her another lawsuit.  A big name bank wanted to collect on the $7,800 owed by Mr. Jones. Mr. Jones had not taken out credit cards in his name, but a visitor who frequently saw his roommate did, with Mr. Jones' information. It took nearly sixteen months to straigten out the credit problems caused by the identity theft.

No one ever thinks about the wealth of information stored in a nursing home. Within the medical record are the patient's date of birth, social security number, address, and other data. When this is combined with credit card offers received in the mail, the perfect storm for identity theft is created. Everything a fraudster needs to create a second identity, including access to the resident's mail, is right within easy reach if a facility does not have a method for delivering mail securely to its residents.

Robert Schneiderman never thought much about that.  He had placed his 98 year old father in a southern California nursing home and didn't worry about him until he started to get bills from credit cards at Home Depot, Target, Chevorn and other retailers.  He discovered his 98 year old father was the victim of identity theft.  Persons 50 and older represent 28 % of the persons suffering from identity theft. And the problem is getting worse.

If a resident receives mail at a facility, steps should be taken, whenever possible, to preserve that resident's privacy. Residents receiving unwanted credit card offers should have those offers shredded to prevent them from being taken and used by staff or visitors for illicit purposes.

Similarly, resident information should be restricted to those with a legitimate need to know. Unless there is a bona fide need for a social security number to appear on a document in the medical record, that number should be kept somewhere that is not readily accessible.

Institutions that do not safeguard patient information not only risk problems with HIPAA violations, they run the risk of being sued for facilitating identity theft.