Assisted Living PowerPoint: Frith Law Firm

1	ASSISTED LIVING LITIGATION T. Daniel Frith, III Frith Law Firm, P.C. 303 Washington Avenue Roanoke, VA 24016 540.985.0098 www.frithlawfirm.com
2	ASSISTED LIVING FACILITIES The new nursing homes 36,000 licensed ALFs nationwide with 1 million residents OBRA doesn’t apply – basically unregulated Most charge fees in excess of Medicaid – highly profitable Competing with nursing homes for residents – taking Alzheimer’s patients and placing them on Memory Units
3	STANDARDS OF CARE Not a ‘Health Care Provider” as defined by Virginia Code – but may market itself as such Doesn’t adhere to OBRA – Nursing Home Reform Act Virginia ALFs – oversight with Department of Social Services – state regulation historically ineffective – effect of Washington Post articles
4	WHO SHOULD NOT BE ADMITTED Ventilator dependent Dermal ulcers III and IV except those stage III ulcers which are determined by an independent physician to be healing Intravenous therapy or injections directly into the vein, except for intermittent intravenous therapy managed by a health care professional licensed in Virginia
5	WHO SHOULD NOT BE ADMITTED Airborne infectious disease in a communicable state that requires isolation of the individual or requires special precautions by the caretaker to prevent transmission of the disease, including diseases such as tuberculosis Psychotropic medications without appropriate diagnosis and treatment plans
6	WHO SHOULD NOT BE ADMITTED Nasogastric tubes Gastric tubes except when the individual is capable of independently feeding himself and caring for the tube Individuals presenting an imminent physical threat or danger to self or others Individuals requiring continuous licensed nursing care
7	WHO SHOULD NOT BE ADMITTED Individuals whose physician certifies that placement is no longer appropriate Individuals whose health care needs cannot be met in the specific assisted living facility as determined by the facility
8	INVESTIGATION OF ALF CASE Obtain facility records – not much to look at Obtain PCP’s records Obtain available hospital records
9	INVESTIGATION OF ALF CASE Make FOIA request for ownership and licensure records from Dept. of Social Services – surveys and complaint investigations Interview ex-employees Obtain ALF marketing materials –written and Internet Check Admission Contracts for Mandatory Arbitration Provision – more later!
10	INVESTIGATION OF ALF CASE Get the records reviewed by a DON or Administrator of an ALF facility Hard to find Local Contacts National Associations – Assisted Living Federation of America State Associations – State Affiliate ALFA James Madison University – Dept of Health Sciences Mary Baldwin College – Health Care Administration Program
11	THEORIES OF RECOVERY Improper Admission Improper/Inadequate Fall-Risk Assessment Failure to Provide Safe Environment Breach of Contract Violation of Virginia Consumer Protection Act Va. Code Ann. §59.1-196 et seq. by misrepresenting goods and services
12	THEORIES OF RECOVERY Negligent Hiring or Retention Wrongful Death and Survival are not mutually exclusive
13	MANDATORY ARBITRATION Corporate America wants to take away the right to a jury trial Corporate America wants to limit your so you cannot prove you case Corporate America wants to limit the amount of your damages – more severely than Virginia law Corporate America wants to pick who decides your case
14	DEFENSES TO ARBITRATION Number 1 Defense: For Nursing Homes and “healthcare providers” – you have at least 60 days to opt out – more if incompetent or death occurs per Va. Code Ann. 8.01-581.12
15	DEFENSES TO ARBITRATION Make Certain the Admission Agreement was properly executed Double Check Documents Dealing with Powers-of-Attorney and “Responsible Party” Language Corporate Shell Game – Make Certain the Defendant has Standing to Move for Arbitration Some Arbitration Provisions Violate the Rules/Procedures of the American Arbitration Association
16	DEFENSES TO ARBITRATION Nursing Homes which Accept Medicaid Cannot Require Additional Consideration Unconscionability Violation of Constitutional Right to Jury Trial Lack of Mutuality Unenforceable as Contract of Adhesion Cannot Apply to Wrongful Death Claims Breach of Fiduciary Duty
17	KEEP UP THE GOOD FIGHT!