October 31, 2005

  NORC Gazette
October 31, 2005

Table of Contents

Ombudsman Program Updates
1. Two MI local ombudsmen receive prestigious awards
2. Local Ombudsman Program in TX begins second year of mediation pilot
3. KS Ombudsman Program expands

Home and Community-Based Care/Olmstead
4. Exhibit displays artwork by Olmstead plaintiff
5. Update on Medicaid HCBS programs available

Nursing Home News
6. Concerns grow about nursing home ownership and realignment
7. CANHR sues Health Department over delayed complaint investigations
8. AHCA reorganizes
9. PA facility must change polices regarding wheelchairs, scooters
10. Major settlements reached with corporations in AR and MO
11. IL village ordinance would impose restrictions on residents, facility
12. Final Staff Posting Regulations Published

Assisted Living
13. Violent offenders found in RI assisted living facilities
14. Medicaid assisted living pilot to start in CA

Staffing
15. Essay proposes that direct-care workers serve as first responders
16. AARP report looks at long-term care immigrant workforce

Medicare
17. Training on Medicare Part D available

Medicaid
18. House and Senate focus on Medicaid cuts

DC Doins'
19. Congress, CMS react to USA Today articles on sprinklers

Ombudsman Program Updates
1. Two MI local ombudsmen receive prestigious awards
Earlier this month, John Weir and Toni Wilson, local ombudsmen in Michigan, were recognized for their outstanding advocacy work. Weir was given the Wilma Donahue award by the Elderlaw and Advocacy Section of the Michigan State Bar. Donahue was the founder of the University of Michigan Institute of Gerontology, and the award is presented to a person in Michigan who has followed in Donahue’s path of dedicating their life and work to advocacy on behalf of Michigan’s elders. Weir, who has been an ombudsman for 18 years, is the most experienced regional ombudsman in Michigan and provides leadership to the other 7 regional ombudsman offices around the state. Sarah Slocum, MI State Ombudsman, described Weir as “someone elders can always count on to go the extra mile.” Recently Weir has focused on assisting 18 Katrina evacuees who ended up in facilities in his area. According to Aging Deputy Director Peggy Brey, “John is an incredible advocate and a hero.”

2. Local Ombudsman Program in TX begins second year of mediation pilot
The Harris County Ombudsman Program, a local ombudsman program in Texas that is housed with the University of Texas - Houston Center on Aging, has just started the second year of its Long-Term Care Mediation Pilot Program. This project provides the opportunity to staff, residents and their family members to resolve their conflicts in a safe and confidential setting. The program uses community mediators, and, under certain circumstances, certified volunteer ombudsmen as well. During its first year the program had a total of 28 referrals, eight of which were mediated. The program also developed a video that is used for outreach and education efforts. The video features a mediation demonstration that was shot in a nursing home using real pilot mediators and facility staff. This summer, an article about the program appeared in an issue of the Bar Associations in Focus on Aging and the Law (BIFOCAL) newsletter, which is a quarterly publication of the American Bar Association’s Commission on Law and Aging. In addition, highlights of the first year will be presented at the Gerontological Society of America Conference in November. For more information about the project, call the Ombudsman Program office at 713-500-9931 or go to: www.ltcmediation.org.
Source: LTC Mediation Progress Notes, October 5, 2005; www.ltcmediation.org

3. KS Ombudsman Program expands
The Kansas State Ombudsman Program has significantly enhanced its ability to help residents with the recent addition of three new regional ombudsmen – Gina Johnston, Pittsburg; Jan Scoggins-Waite, Dodge City; and Velvet Johnson, Hays. In a press release, Kansas Governor Kathleen Sebelius stated, “By expanding access to advocates, we are demonstrating our commitment to some of the most valued and vulnerable citizens of our state.” In addition to more paid staff, the Kansas Ombudsman Program has increased its volunteer ombudsmen from 68 a year ago to 118 currently. “We simply could not exist without the dedication and compassion of our volunteers and staff,” said State Ombudsman Kathy Greenlee. “We applaud the Governor for working to expand our reach so we can serve more Kansans.”
Source: Press release from the Office of the Governor, October 6, 2005

November 17, 2005: Teleconference on QIO Workforce Issues by David Farrell. 2:00 p.m. Eastern time. For more information, contact the Resource Center at 202-332-2275.

November 30 – December 2, 2005 Celebrate Direct-Care Workers, Orlando FL. This conference is sponsored jointly by the Pioneer Network and the Direct Care Alliance. Celebrate Direct-Care Workers, the only national conference scheduled by either organization this year, will convene workers, consumers, and providers from the full spectrum of long-term care and aging services. Participants will honor and celebrate the work of direct-care workers, enhance leadership skills and organizational effectiveness, and renew their energy for their work as champions of change.
More information about the conference at: www.celebratedirectcareworkers.org.

December 11 – 14, 2005: 2005 White House Conference on Aging. Washington, D.C.

April 19 - 23 2006: NAELA 2006 Symposium Washington DC

April 20 - 23 2006: 2006 National Aging and Law Conference, Elder Rights: Building on the Past, Strengthening the Future. Co-sponsored by AARP Foundation, ABA Commission on Law and Aging, National Senior Citizens Law Center, The Center for Social Gerontology, Center for Medicare Advocacy, Inc., National Academy of Elder Law Attorneys, National Consumer Law Center and National Association of State Units on Aging the conference will be held at the Doubletree Hotel, Crystal City, Virginia.

April 22 – 25 2006: Annual State Ombudsman Training to be held in Salem, MA.

Home and Community-Based Care/Olmstead
4. Exhibit displays artwork by Olmstead plaintiff
Artwork by Lois Curtis, one of the original Olmstead plaintiffs, is now on display at the Temple Gallery in Decatur, Georgia. A native of Atlanta, Ms. Curtis spent most of her adolescent and adult life as a resident in various state-run institutions for people with disabilities. After her repeated requests to be allowed to reside in the community were denied, Ms. Curtis, working with Atlanta Legal Aid, sued the state of Georgia. In 1999, her case came before the U.S. Supreme Court, which ruled in the landmark Olmstead decision that, “Unnecessary institutionalization amounts to segregation and is a violation of individual civil rights under the Americans with Disabilities Act.” Ms. Curtis now lives at home with community-based supports and has discovered and developed her talents for painting and writing. Her exhibit at Temple Gallery is called “Ms. Curtis, it’s a pleasure to meet you.” Using pastels and acrylics, Ms. Curtis’ painting celebrates her journey from institutionalized isolation to community inclusion. Her work will be on display from November 9 - December 23.
Source: http://www.atlantalegalaid.org/impact.htm; Press release, Temple Gallery

5. Update on Medicaid HCBS programs available
The Kaiser Commission on Medicaid and the Uninsured recently released a data update on the three main Medicaid Home and Community-Based Services (HCBS) programs that states can operate. The report includes program population and expenditure data through 2002, as well as eligibility criteria and waiting list information through 2004. The Commission concludes that cost containment strategies are limiting the expansion of HCBS programs and increasing waiting lists for these services. For more information, visit: http://www.kff.org/medicaid/7345.cfm.
Source: Family Caregiver Alliance Caregiving Policy Digest Volume V, Number 12, October 12, 2005

Nursing Home News
6. Concerns grow about nursing home ownership and realignment
The recent proposed purchase of Beverly Enterprises, Inc. (BEI) by North America Senior Care (NASC) has triggered serious concerns on the part of advocates and lawmakers. One concern is that real estate companies are buying nursing homes, stripping them of their assets, and creating a licensing entity that has few assets. The licensing entity then has insufficient resources to pay vendors and suppliers. This can, in turn, affect resident care. A second concern is about the ability of a state regulatory agency to hold a licensing entity accountable if the licensee does not own the facility, manage the care or have any assets. According to a press release by Texas Advocates for Nursing Home Residents (TANHR), NASC bought Mariner Health in December 2004 and created a licensing entity with few assets. That company is now being sued in several states by vendors and suppliers who say they are not being paid and the company is insolvent. TANHR worries that this financial situation may result in Mariner homes cutting staff or closing, and the group is calling for legislative hearings. NASC is now poised to buy Arkansas-based BEI. One Arkansas senator has questioned NASC’s solvency and resident care track record and held hearings on the matter in September. Two Mississippi lawmakers are also troubled by this trend and have decided to hold hearings as well.
Source: Daily Journal (Mississippi), October 19, 2005; Press release from Coastal Bend Chapter, Texas Advocates for Nursing Home Residents, October 20, 2005

7. CANHR sues Health Department over delayed complaint investigations
California Advocates for Nursing Home Reform (CANHR) has filed suit against the California Department of Health Services (DHS) to compel the Department to comply with state law requiring that complaints against nursing homes be investigated on a timely basis. The suit charges DHS with pervasive failure to investigate complaints within the mandatory 10-day response time and alleges that this failure has exposed nursing home residents to abuse and neglect and compromised their health and safety. The suit involves 2 plaintiffs; one plaintiff’s complaint regarding her mother’s care was not investigated for 10 months. The lawsuit asserts that by the time the Department initiates an investigation, staff is gone, evidence is lost and witnesses are unavailable. As a result, complaints cannot be substantiated or are summarily dismissed. “More and more complaints are not investigated at all, or not on a timely basis,” said Patricia McGinnis, CANHR director. A DHS spokesperson said the Department could not comment because it had not received a copy of the lawsuit, but that it looks into 96% of the most serious complaints within 24 hours and into 40% of other complaints within 10 days.
Source: CANHR press release, October 18, 2005; Sacramento Bee, October 21, 2005; Mercury News, October 19, 2005

8. AHCA reorganizes
According to Angelo Rotella, the new chair of the American Health Care Association (AHCA), the organization is revamping its governance structure in order to “speed the internal decision-making process and improve advocacy efforts on behalf of the nation’s frail, elderly and disabled.” AHCA will replace its 500-member House of Delegates with a 49-member Council of States; reduce its board members to 15 from 75; and reduce its executive committee members to five from 15. Modern Healthcare reports that the changes appeased Kindred Healthcare of Louisville, Kentucky, one of four large publicly traded companies that had threatened to leave the association because of dissatisfaction with its Washington lobbying efforts and bureaucracy. Kindred Chairman Edward Kuntz was elected as one of seven at-large AHCA representatives in the revamp. Another newly elected at-large representative is Richard Pell, a senior vice president at Genesis HealthCare Corporation in Pennsylvania, which also had been considering a pullout.
Source: AHCA press release, October 21, 2005; www.modernhealthcare.com, October 21, 2005

9. PA facility must change polices regarding wheelchairs, scooters
The U.S. Justice Department has settled a case against Twining Village, a continuing care retirement community in Bucks County, Pennsylvania, that restricted residents’ use of manual wheelchairs and motorized chairs and scooters within its complex and required persons who used scooters to indemnify the facility and submit to an evaluation and training program annually. Under the agreement, residents may use mobility aids throughout the entire complex without the requirement for indemnification or annual evaluations. The facility will pay a resident injured by the former ban on wheelchairs $17,500 in damages, establish a $67,500 settlement fund for others who may have been injured, and pay the government a $7,500 civil penalty. “The many continuing-care retirement communities in Pennsylvania should take note today,” said Patrick L. Meehan, U.S. Attorney for the Eastern District of the state. “Legitimate concern for the safety of all residents must be balanced with due regard for federal civil rights.” For more information, contact Olegario D. Cantos VII, Special Assistant to the Acting Assistant Attorney General, at 202-616-7920 or Ollie.Cantos@usdoj.gov.
Source: DRG Express (Disability Rights Group); U.S. Department of Justice press release, October 5, 2005

10. Major settlements reached with corporations in AR and MO
The Arkansas Office of the Attorney General and Beverly Enterprises (BEI) agreed to a $1.5 million settlement resolving 26 investigations by the Attorney General involving 12 Beverly-operated nursing homes. The investigations centered on allegations of mistreatment and neglect of residents in those homes. BEI paid $1 million into the Arkansas Medicaid Program Trust Fund and agreed to pay at least $500,000 to improve its nursing homes. The agreement also requires programs to recognize, treat and prevent pressure sores and other injuries and to prevent narcotics abuse by staff members. The $1.5 million settlement represents less than 0.07% of BEI’s annual revenues.

11. IL village ordinance would impose restrictions on residents, facility
A proposed ordinance in the village of Frankfort in Illinois would ban the treatment of registered sex offenders or anyone with mental illness, drug or alcohol abuse at nursing homes within the village and would prohibit any nursing home resident from leaving a facility without an escort. New ordinances would also require licensing and inspection by the village, in addition to state regulation, and mandate security cameras and alarms on each entrance and exit door. Currently, there is only one nursing home, Frankfort Terrace, in Frankfort. According to the village, complaints have been made about instances of residents exhibiting “peeping tom” behavior, trespassing and harassing others. The mayor has said he is concerned about the younger residents at the facility who have mental illnesses or substance abuse problems. Patricia Bronte, the facility’s attorney, noted that the state places the younger residents in the long-term care facility rather than putting them in a large state hospital. She said it was unfair to prohibit residents from walking down the streets and called the proposed ordinances “Draconian action.” Bronte added that the facility would likely file a lawsuit if the ordinances were approved.
Source: Herald News, October 19, 2005

12. Final Staff Posting Regulations Published
The final regulations on posting nurse staffing information in nursing homes were published in the Oct. 28th Federal Register. The final regulations have changed in some respects from the proposed regulations issued in February 2004, but they still require certain core information supported by the National Citizens' Coalition for Nursing Home Reform (NCCNHR).

· Actual hours worked (as opposed to scheduled to be worked) by direct care workers by category – RN, LPN/LVN, and CNA; and

· Resident census.

To download the regulations and CMS’s explanation of them, go to http://www.gpoaccess.gov/fr/. Click on “Browse” and then “Back Issue.” The regs are under the Centers for Medicare and Medicaid Services.
Source: NCCNHR e-mail 10/28/05

13. Violent offenders found in RI assisted living facilities
A report by the Rhode Island Office of Health and Human Services (OHHS) revealed that 19 ex-convicts reside in assisted living facilities in the state, including 13 who committed violent crimes. OHHS had been asked by Lt. Governor Charles Fogarty to prepare the report after a male resident, age 44, allegedly murdered his girlfriend and raped a housekeeper at the Beechwood Senior Living residence. At the time, the resident was on probation for felony assault. After reviewing the report, Fogarty said, “Certainly it concerns me that violent criminals are living in assisted living facilities and it is clear that the state must do a better job protecting residents.” He also said that state officials were in the process of drafting a law that would give the state authority to separate high-risk individuals from fragile, vulnerable people. RI State Ombudsman Roberta Hawkins commented that the state is finally on the right track. “Frail elderly do not belong with people who have (violent) backgrounds,” she said. Other steps are also being taken to protect residents. In the wake of Beechwood, the Department of Health has begun conducting assisted living facility inspections on an annual basis as required by law, instead of every three years which had been the Department’s practice. In addition, the Department of Corrections will notify assisted living complexes in writing when individuals on probation or parole move into a facility.
Source: Pawtucket Times, October 13, 2005; Associated Press, October 12, 2005

14. Medicaid assisted living pilot to start in CA
California is launching a three-year pilot project at the beginning of 2006 to test the viability of Medicaid-covered assisted living. The state is one of just nine in the country that does not yet have a Medicaid Waiver for assisted living. The program will place up to 1,000 Medi-Cal eligible recipients in an assisted living setting. Seventy percent of the residents will be housed in residential care facilities for the elderly, and 30% will move into publicly-subsidized housing sites where they will be cared for by home health care agencies. The project is being tested in 3 counties and will be evaluated for cost-effectiveness and service quality. A recommendation on whether to continue the program will be made to the state legislature at the end of the 3 years.
Source: San Jose Business Journal, October 3, 2005

15. Essay proposes that direct-care workers serve as first responders CNA John H. Booker has written an essay in which he discusses the role of the direct-care worker in emergencies. Booker notes that when he served as a mentor, part of his job was to introduce new direct-care workers to the facility’s official evacuation and disaster plan. He states that at the time he thought of this as the least exciting part of his duties, but that the tragedy of Hurricane Katrina has forced all of us to ask if we are ready for the next catastrophe. Booker proposes that direct-care workers be trained as “first responders.” To read his essay, go to: http://www.directcareclearinghouse.org/v_det.jsp?res_id=185810.
Source: Quality Jobs/Quality Care, October 7, 2005

16. AARP report looks at long-term care immigrant workforce
An AARP study examines the increasing international migration of workers from developing countries to provide long-term care services in developed countries, including the United States. According to the report, the proportion of foreign-born nurse aides and nurses in long-term care settings in the U.S. increased from 6% to 16% from 1980 to 2003. Nearly half of foreign-born aides in this country come from Mexico and Central America, including the Caribbean nations; the majority of foreign-born nurses come from Asia, and in particular, the Philippines. The report also explores the factors driving the migration and its impact on the countries of origin and looks at the countries that receive the workers. The report concludes with a discussion of policy questions that must be addressed at the national and international levels, including worker shortages, worker qualifications, effects of linguistic and cultural differences on quality of care, impact on wages, working conditions in developed countries, and impact on the health care systems of source countries. To read the report, entitled, “We Shall Travel On: Quality of Care, Economic Development, and the International Migration of Long-Term Care Workers,” go to: http://www.aarp.org/research/longtermcare/quality/2005_14_intl_ltc.html.
Source: http://www.aarp.org/research/longtermcare/quality/2005_14_intl_ltc.html

17. Training on Medicare Part D available
A number of different trainings on Medicare Part D are now available. Over the next few weeks, the National Association of Area Agencies on Agency (N4A), the National Association of State Units on Aging (NASUA), and the National Council on Aging (NCOA) are offering a series of Webcast Training Seminars. The seminars will cover a continuum of information, including core content on the Medicare Prescription Drug Plans and Extra Help program, as well as how to use web-based enrollment assistance tools, resources and materials. For information on these seminars, contact Bernice Hutchinson of NASUA at 202-898-2578 or bhutchinson@nasua.org. The American Society on Aging is also sponsoring 20 local programs across the country in collaboration with Pfizer Community Health Advocacy for volunteers and professionals. Representatives from the Centers for Medicare and Medicaid Services (CMS) will present the latest information, answer questions, and demonstrate the CMS Plan Finder. For information on the programs, go to: http://www.asaging.org/medicare/calendar.cfm.
Source: Email from NORC, October 25, 2005; email from American Society on Aging, October 13, 2005

Medicaid

18. House and Senate focus on Medicaid cuts
Both houses of Congress have been working on Medicaid cuts, but are taking radically different approaches. Republicans on the Senate Finance Committee agreed to $10 billion in combined cuts from Medicaid and Medicare and passed a budget bill that will go to the full Senate. NCCNHR and most advocacy groups were pleasantly surprised by the bill because the cuts were achieved without reducing benefits and without imposing harsh asset transfer penalties on applicants for nursing home benefits. In addition, the bill reflects NCCNHR’s recommendations on transfer of assets and some other issues. To download the Finance Committee bill or summaries, go to the committee’s website, http://finance.senate.gov/, click on “legislation” in the left column, and open the documents for 10/25/05. On the House side, however, the Medicaid proposals include a five-year look-back on all asset transfers and a penalty period beginning at the time of application of benefits. A copy of the House document is on the committee’s website, Title II - Medicaid, Katrina Health Care Relief, and Katrina and Rita Energy Relief at http://energycommerce.house.gov/108/Markups/10252005/Title_II.PDF. If the House and Senate pass their respective bills, the legislation will be sent to a conference committee where a handful of congressional leaders will decide how to reconcile the differences between them.
Source: NCCNHR Medicaid Bulletin, October 26, 2005

19. Congress, CMS react to USA Today articles on sprinklers
After publication of the USA Today articles (October 7- 9, 2005) that revealed to the public that the federal government does not require older nursing homes to have fire sprinklers, there is a renewed push in Congress to pass some type of fire safety legislation. A bill introduced by Representatives Pete King and John Larson would create a “sense of the Senate” which would state that every nursing home should have sprinklers (but not require them to do so) and would authorize low-cost loans and grants to pay for them. In addition, Thomas Hamilton, head of nursing home oversight at the Centers for Medicare and Medicaid Services (CMS), says the agency is “seriously considering” a sprinkler mandate, and that in mid-2006, the CMS website will begin to include a nationwide listing of homes that do and do not have sprinkler systems throughout the facility.
Source: USA Today, October 24, 2005; communication from Janet Wells, October 26, 2005

Please submit suggestions for improvement or information to Robyn Grant, NORC consultant, at robyngrant@comcast.net.

For more information contact the National Long Term Care Ombudsman Resource Center, at (202) 332-2275 or ombudcenter@nccnhr.org