Minnesota Nursing Home Neglect Lawyer

Why is a claim against a long-term care or home care provider considered to be medical malpractice?

1. Minnesota Law considers claims against any “medical professionals” to be medical malpractice claims.

2. Claims against a “Health Care Provider” include “a physician, surgeon, dentist, occupational therapist, other health care professionals as defined in section 145.61, hospital, or treatment facility.” (Minn. Stat. § 541.076; See Attachment F).

3. “Nursing home” and “professional services” are specifically included in 145.61, subd. 4:

“Health care” means professional services rendered by a professional or an employee of a professional and services furnished by a hospital, sanitarium, nursing home or other institution for the hospitalization or care of human beings.

4. Minn. Stat. § 145.682 – Expert review required as follows:

“health care provider” means a physician, surgeon, dentist, or other health care professional or hospital, including all persons or entities providing health care as defined in section 145.61, subdivisions 2 and 4, or a certified health care professional employed by or providing services as an independent contractor in a hospital.

5. Case law also supports the inclusion of claims against and long-term and home care provider as medical malpractice claims.

This website is not to provide legal advice as each situation is different and specific factual information must be obtained before an attorney is able to assess the legal questions relevant to your situation. In addition to providing related information this blog may also be considered an advertisement for legal services.

If you or a loved one has suffered an injury or abuse in a nursing home or other care facility that serves the elderly in Minnesota , please contact our firm for a free consultation and information regarding the obligations of the facility and your rights as a resident or concerned family member. To contact attorney Kenneth LaBore, directly please send an email to klabore@MNnursinghomeneglect.com , or call Ken at 612-743-9048.

What is a Special Focus Facility?  And what is the SFF Initiative and webpage?  Special Focus Facility (“SFF”) Initiative This webpage offers a list of nursing homes that (a) have had a history of serious quality issues and (b) are included in a special program to stimulate improvements in their quality of care. Please take a minute to review this background information on our “Special Focus Facility” initiative. The background here will help you be as informed as possible when you discuss your long term care options with any nursing home that is listed here – and what they are doing to improve their quality of care.  Background The Centers for Medicare &amp; Medicaid Services (CMS) and States visit nursing homes on a regular basis to determine if the nursing homes are providing the quality of care that Medicare and Medicaid requires. These “survey” or “inspection” teams will identify deficiencies in the quality of care that is provided. They also identify any deficiencies in meeting CMS safety requirements (such as protection from fire hazards). When deficiencies are identified, we require that the problems be corrected. If serious problems are not corrected, we may terminate the nursing home’s participation in Medicare and Medicaid. Most nursing homes have some deficiencies, with the average being 6-7 deficiencies per survey. Most nursing homes correct their problems within a reasonable period of time. However, we have found that a minority of nursing homes have: More problems than other nursing homes (about twice the average number of deficiencies), More serious problems than most other nursing homes (including harm or injury experienced by residents), and A pattern of serious problems that has persisted over a long period of time (as measured over the three years before the date the nursing home was first put on the SFF list).  Although such nursing homes would periodically institute enough improvements in the presenting problems that they would be in substantial compliance on one survey, significant problems would often re-surface by the time of the next survey. Such facilities with a “yo-yo” or “in and out” compliance history rarely addressed underlying systemic problems that were giving rise to repeated cycles of serious deficiencies. To address this problem CMS created the “Special Focus Facility” (SFF) initiative. How the Special Focus Facility (SFF) Initiative Works CMS requires that SFF nursing homes be visited in person by survey teams twice as frequently as other nursing homes (about twice per year). The longer the problems persist, the more stringent we are in the enforcement actions that will be taken. Examples of such enforcement actions are civil monetary penalties (“fines”) or termination from Medicare and Medicaid. Within about 18-24 months after a facility is identified by CMS as an SFF nursing home, we expect that there will be one of 3 possible outcomes:  (a) Improvement &amp; Graduation: The nursing home graduates from the SFF program because it has made significant improvements in quality of care – and those improvements are continued over time;  (b) Termination from Medicare: The nursing home is terminated from participation in the Medicare and Medicaid programs. While such a nursing home may continue to operate (depending on State law), usually it will close once Medicare and Medicaid funding is discontinued. In such a case the State Medicaid Agency (and others) will assist all nursing home residents to transition to another residence that can provide a better and acceptable quality of care. This may include a variety of possibilities, such as another nursing home, a community-based setting, or apartment with good support services.  (c) Extension of Time: The nursing home is provided with some additional time to continue in the SFF program because there has been very promising progress, such as the sale of the nursing home to another owner with a much better track record of providing quality care.  How Can You Use This Information If you are considering admission to a nursing home included on this list you may want to: Above all, visit the nursing home. Talk to staff, residents, and other families. You may request to see the results from the last State or CMS survey (it should be in a place that is easily accessible.) Before your visit, look at the survey history of the nursing home on Nursing Home Compare to see what areas may be problematic. Ask the nursing home staff what they are doing to improve the quality of care for residents in the nursing home. Call the State survey agency (link to Nursing Home Compare) to find out more about the nursing home. Look at the length of time that a nursing home has been on the SFF list. This is particularly important if the nursing home has been an SFF nursing home for more than 18-24 months, since such nursing homes are closer to either graduating (due to improvements) or ending their participation in Medicare and Medicaid. Call your local State Ombudsman, Administration on Aging, and local groups to find out more about the nursing home. Use the Nursing Home Brochure found at http://www.medicare.gov/Publications/Pubs/pdf/nursinghome.pdf and “Guide to Choosing a Nursing Home” <a href=”http://www.medicare.gov/Publications/Pubs/pdf/02174.pdf”>http://www.medicare.gov/Publications/Pubs/pdf/02174.pdf</a> – both publications are available on Nursing Home Compare.  If you currently reside in a SFF nursing home, please know that this home is being closely monitored (it is inspected twice as often as other nursing homes). You may also direct any questions you have to the contacts above. The good news is that about 50% of the nursing homes in the SFF program significantly improve their quality of care within 24-30 months after being selected for the SFF initiative, while about 16% tend to be terminated from Medicare and Medicaid.  How to Interpret the Tables Below we list nursing homes in five (5) different categories:  A. Table A – New Additions: Nursing homes newly added to the SFF (which have not yet had a standard survey since being added to the list).  B. Table B – Not Improved: Nursing homes that have failed to show significant improvement despite having had the opportunity to show improvement in at least one survey after being named as a SFF nursing home.  C. Table C – Improving: Nursing homes that have shown significant improvement, as indicated by the most recent survey, and CMS is waiting to see if the improvement continues over time. If the improvement continues for about 12 months (through two standard surveys), these nursing homes will graduate from the SFF list. “Significant improvement” means that the most recent standard survey (and any later compliant investigations) found no deficiencies in which there was actual harm to any resident, and no deficiency in which there was systemic potential for harm (i.e. no deficiency above an “E” level).  D. Table D – Recently Graduated: These nursing homes not only improved, but they sustained significant improvement for about 12 months (through two standard surveys). CMS congratulates these nursing homes and list their names as “graduates” for a few months after they graduate so that anyone who has been tracking their progress will be informed. “Graduation” does not mean that there may not be problems in quality of care, but does generally indicate an upward trend in quality improvement compared to the nursing home’s prior history of care.  E. Table E – No Longer in Medicare and Medicaid: These are nursing homes that were either terminated by CMS from participation in Medicare and Medicaid within the past few months, or voluntarily chose not to continue such participation. In most cases the nursing homes will have closed, although some nursing homes that leave Medicare later seek to show better quality and re-enter the Medicare program after demonstrating their ability to comply with all Federal health and safety requirements.  In Minnesota there were six nursing homes that were mentioned on the Special Focus Facility released in July 2011, they were: Under: Facilities that Have Not Improved Valley View Manor in Laberton, Minnesota Wilmar Commons Nurs &amp; Rehab, in Wilmar, Minnesota Under: Facilities Newly Added to the SFF Program Eveleth Heath Services Park in Eveleth, Minnesota Jourdain/Perpich Ext Care Facility, Redlake, Minnesota Under:    Facilities that Recently Graduated from the SFF Program Crest View Lutheran Home, in Columbia Heights, Minnesota Westwood Health in Saint Louis Park, Minnesota  For the entire list of facilities on the SFF list see:  <a href=”http://www.cms.gov/CertificationandComplianc/Downloads/SFFList.pdf”>http://www.cms.gov/CertificationandComplianc/Downloads/SFFList.pd</a>f  This website is not to provide legal advice as each situation is different and specific factual information must be obtained before an attorney is able to assess the legal questions relevant to your situation.   In addition to providing related information this blog may also be considered an advertisement for legal services. If you or a loved one has suffered an injury or abuse in a nursing home or other care facility that serves the elderly in Minnesota, please contact our firm for a free consultation and information regarding the obligations of the facility and your rights as a resident or concerned family member.   To contact attorney Kenneth LaBore, directly please send an email to klabore@MNnursinghomeneglect.com, or call Ken at 612-743-9048.

Nursing Home Selection

Choosing a nursing home for yourself or a loved one can be challenging. This Nursing Home Report Card gives information to help you make your choice. You should also consider other sources of information, visit the nursing homes being considered, and discuss your choices with family members and staff members of the facility.
This report card shows how Minnesota nursing homes scored in seven quality measures. Each nursing home is scored from 1 (lowest) through 5 (highest) on each of the seven measures. For additional information about the report card go to the nursing home report card fact sheet, Medicare NH Compare.
First, you can focus your search by choosing your preferred area of the state by zip code, or click here to see the report card for an individual nursing home.

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For questions about this page, please contact: nhreportcard@health.state.mn.us

This website is not intended to provide legal advice as each situation is different and specific factual information must be obtained before an attorney is able to assess the legal questions relevant to your situation.

If you or a loved one has suffered an injury from neglect or abuse in a nursing home or other care facility that serves the elderly in Minnesota please contact our firm for a free consultation and information regarding the obligations of the facility and your rights as a resident or concerned family member. To contact Attorney Kenneth L. LaBore, directly please send an email to klabore@mnnursinghomeneglect.com, or call Ken at 612-743-9048.

The Minnesota minimum staffing levels are determined by statute and require the minimum number of hours of nursing personnel to be provided in a nursing home is the greater of two hours per resident per 24 hours or 0.95 hours per standardized resident day.

Stat. Sec. 144A04, Subd. 7 (2009). Subd. 7.Minimum nursing staff requirement.

Notwithstanding the provisions of Minnesota Rules, part 4655.5600, the minimum staffing standard for nursing personnel in certified nursing homes is as follows:

(a) The minimum number of hours of nursing personnel to be provided in a nursing home is the greater of two hours per resident per 24 hours or 0.95 hours per standardized resident day. Upon transition to the 34 group, RUG-III resident classification system, the 0.95 hours per standardized resident day shall no longer apply.

(b) For purposes of this subdivision, “hours of nursing personnel” means the paid, on-duty, productive nursing hours of all nurses and nursing assistants, calculated on the basis of any given 24-hour period. “Productive nursing hours” means all on-duty hours during which nurses and nursing assistants are engaged in nursing duties. Examples of nursing duties may be found in Minnesota Rules, parts 4655.5900, 4655.6100, and 4655.6400. Not included are vacations, holidays, sick leave, in-service classroom training, or lunches. Also not included are the nonproductive nursing hours of the in-service training director. In homes with more than 60 licensed beds, the hours of the director of nursing are excluded. “Standardized resident day” means the sum of the number of residents in each case mix class multiplied by the case mix weight for that resident class, as found in Minnesota Rules, part 9549.0059, subpart 2, calculated on the basis of a facility’s census for any given day. For the purpose of determining a facility’s census, the commissioner of health shall exclude the resident days claimed by the facility for resident therapeutic leave or bed hold days.

(c) Calculation of nursing hours per standardized resident day is performed by dividing total hours of nursing personnel for a given period by the total of standardized resident days for that same period.

(d) A nursing home that is issued a notice of noncompliance under section 144A.10, subdivision 5, for a violation of this subdivision, shall be assessed a civil fine of $300 for each day of noncompliance, subject to section 144A.10, subdivisions 7 and 8.

This website is not intended to provide legal advice as each situation is different and specific factual information must be obtained before an attorney is able to assess the legal questions relevant to your situation.

If you or a loved one has suffered an injury from neglect or abuse in a nursing home or other care facility that serves the elderly in Minnesota please contact our firm for a free consultation and information regarding the obligations of the facility and your rights as a resident or concerned family member. To contact Attorney Kenneth L. LaBore, directly please send an email to klabore@mnnursinghomeneglect.com, or call Ken at 612-743-9048.

According to a story in The Journal, an International Falls Newpaper, titled: LMC nurse found negligent
A nurse employed by the Littlefork Medical Center has been found by the Minnesota Department of Health to have acted with neglect when failing to follow the facility’s policies and procedures when a resident began to have significant changes in breathing. The report did place blame on the facility which after investigating the incident since they forwarded a report to the Office of Health Facility Complaints (OHFC) in conjunction with the Vulnerable Adults Act.
The nature of the complaint stemmed from an incident when the aide failed to respond according to policies and procedures when the resident’s oxygen level suddenly dropped.
As an attorney who handles nursing home abuse and neglect cases, I was concerned over the nurse’s neglect, however pleased to see that the facility had acted correctly and reported the incident to the MDH, OHFC. The facilities proactive approach helped protect themselves as well as the residents of the facility.
According to federal law there is a general duty of a facility to:
42 CFR § 483.15 Quality of life.
A facility must care for its residents in a manner and in an environment that promotes maintenance or enhancement of each resident’s quality of life.
(a) Dignity. The facility must promote care for residents in a manner and in an environment that maintains or enhances each resident’s dignity and respect in full recognition of his or her individuality.
(k) Special needs. The facility must ensure that residents receive proper treatment and care for the following special services:
(1) Injections;
(2) Parenteral and enteral fluids;
(3) Colostomy, ureterostomy, or ileostomy care;
(4) Tracheostomy care;
(5) Tracheal suctioning;
(6) Respiratory care;
(7) Foot care; and
(8) Prostheses.
The NURSING HOME, must conduct initially a comprehensive and accurate assessment of each resident’s functional capacity. (42 CFR §483.20)
When the aide was made aware of the change in condition of the resident she was required to notify the treating physician and decision maker for the resident.
This website is not intended to provide legal advice as each situation is different and specific factual information must be obtained before an attorney is able to assess the legal questions relevant to your situation.
If you or a loved one has suffered an injury from neglect or abuse in a nursing home or other care facility that serves the elderly in Minnesota please contact our firm for a free consultation and information regarding the obligations of the facility and your rights as a resident or concerned family member. To contact Attorney Kenneth L. LaBore, directly please send an email to KlaBore@mnnursinghomeneglect.com or call Ken LaBore at 612-767-7503.

There was an excellent story this week in the Star & Tribune titled: To check a nursing home.

There was information for consumers and family members to check on the quality of nursing homes in Minnesota, including:
• Medicare Nursing Home Compare
• ‘Special Focus’ Facilities
• Minnesota Department of Health
• Complaint investigation
• Inspection Reports

To review this story see: To check a nursing home.

You can also receive this information and much more on my website, which has many resources for residents and family members of nursing home and other elder care facilities. See Minnesota Nursing Home Neglect – Resources.

This website is not intended to provide legal advice as each situation is different and specific factual information must be obtained before an attorney is able to assess the legal questions relevant to your situation.

If you or a loved one has suffered an injury from neglect or abuse in a nursing home or other care facility that serves the elderly in Minnesota please contact our firm for a free consultation and information regarding the obligations of the facility and your rights as a resident or concerned family member. To contact Attorney Kenneth L. LaBore, directly please send an email to KlaBore@mnnursinghomeneglect.com or call Ken at 612-743-9048.