Comparative shopping in nursing homes.
In August 2014, New York Times author Katie Thomas uncovered the systematic abuse and neglect of elders at Rosewood Retirement Home ("Rosewood"), which held a five-star rating on Medicare.gov's Nursing Homes Compare tool. (1) In an article examining the Medicare website and the prevalence of elder abuse in nursing homes, Thomas detailed deficient health care and understaffing challenges along with other problems with staff and medical care at Rosewood. (2) Mrs. Essie Chandler was one of the elders who suffered abuse during her stay at Rosewood. (3) In (2011), Mrs. Chandler's son placed her in Rosewood based on its top rating and Medicare approval. (4) Throughout Mrs. Chandler's stay at Rosewood, her son observed dark bruising on her arms and legs because Mrs. Chandler experienced numerous falls while in the facility's care. (5) Though she left the facility before her death, she was never able to walk unassisted again. (6) Further investigation into Rosewood's history revealed that this was not the first time that the nursing home had been accused of substandard care. (7) In fact, elders and their families brought approximately a dozen lawsuits against the home in recent years. (8) Even so, Rosewood maintains the highest star rating available on Medicare's website. (9)
The Medicare Star Ratings System ("MSR") was implemented in 2009 and is based on a mixture of annual inspections and facility self-reporting. (10) It is available at no cost to consumers by the federal government. (11) Because the federal government funds most nursing home expenses through its Medicare and Medicaid supplemental insurance programs, it mandates that those nursing homes participate in MSR. (12) While reliance on MSR has increased, its accuracy is questionable and its success has been mixed, at best. (13) As nursing homes with cases of known elder abuse, like Rosewood, continue to hold the highest MSR ratings, the integrity of the ratings system becomes more questionable. (14) MSR has demonstrated, in a unique data-driven way, the need to treat elder abuse as a specific type of discrimination and to facilitate the identification of dangerous nursing homes for consumers. (15)
This note argues that MSR should be modified in order to heighten the federal government's involvement and establish a national baseline for victims of elder abuse so that they may utilize the justice system to recover damages or pursue criminal charges. First, it will explore legislation that addresses elder abuse in the nursing home system and ways that elders encounter difficulty when engaging the justice system. (16) Next, it will discuss the development of MSR since its implementation and its impact on the nursing home market and elder abuse cases. (17) Then, it will argue in favor of a federal standard that prevents elder abuse and preserves the intent of MSR to distribute reliable information about nursing home quality. (18)
A. Harm to Elders
Elders are among the most vulnerable Americans because elder abuse manifests in a variety of ways that transcend cultural and racial diversity, and functions as a direct result of physical, mental, and financial challenges unique to elders. (19) Many elders find themselves in nursing homes as a result of a medical event and their families' inability to care for them. (20)
The position of nursing homes as caregivers and for-profit institutions fosters an environment likely to lead to abuse. (21) However, regulations can prevent and deter abuse by punishing abusers and the institutions that fail to take appropriate precautions. (22) Addressing how nursing homes facilitate abuse must include legislation and regulations that consider how abuse against elders can be remedied. (23) Further, there are social issues, including inherent bias against elders' credibility, that often cause the legitimate fears and complaints communicated by elders to be dismissed. (24) Medical professionals also have difficulty diagnosing abuse because the symptoms of other diseases and conditions common among elders may not be easily distinguishable from abuse. (25)
B. Statutory Remedies
There are several laws that purport to protect elders and impose penalties on their abusers. (26) In practice, however, it is difficult for elders to get justice under those statutes in the civil and the criminal systems. (27) For example, the Older Americans Act ("OAA") was passed in 1965 in response to concerns about a general lack of social services resources for the elderly. (28) The OAA provides funding for nursing homes and medical care expenses, however, it is a complex law that mostly provides funding for research and some essential services, like Meals-On-Wheels, rather than statutory remedies for abuse. (29) Although the OAA does not have "teeth" that provide a means to penalize elder abuse, it is responsible for data compilations that inform modifications to current laws and the development of new legislation. (30)
In 2010, Congress conducted research to determine existing statutory authorities that prevented, detected, or treated elder abuse. (31) As part of that research, a comprehensive list was created, which included the following statutes: the Older Americans Act ("OAA"); the Affordable Care Act ("ACA"); the Public Health Services Act ("PHSA"); the Social Security Act ("SSA"); the Victims of Crime Act ("VOCA"); the Violence Against Women Act ("VAWA"); Title XIX: Medicaid; and SSA Title XX: Block Grants to States for Social Services and Elder Justice. (32) No statute in this list addressed complaints or litigation concerns related to elder abuse. (33)
In an attempt to organize relevant elder abuse data and raise awareness, in 2014, President Obama signed the Improving Medicare Post-Acute Care Transformation Act of 2014 ("IMPACT Act"). (34) The IMPACT Act allocated eleven million dollars to fund website improvements and research and required an in-depth review of Nursing Home Compare. (35) In addition, it also required that residential data and standardized patient assessments be both submitted electronically and objectively verifiable by 2018. (36) However, the IMPACT Act made no mention of MSR, nor did it provide any objective measures. (37) On the same day the act was passed, the Center for Medicare and Medicaid Services ("CMS") announced that it would make changes to the MSR rating system, including verifying staffing and quality measures, implementing a verification system for staffing based on payroll and additional quality measures, strengthening the requirement that individual states maintain a user friendly website and complete regular inspections, and improving the methodology on which the five star rating was based. (38) The shortcomings of the IMPACT Act, OAA, PHSA, and VOCA are that they exist almost solely for data collection. (39) This large collection of data is showcased in Nursing Home Compare and justifies the need for a revamped MSR. (40)
Victims of elder abuse and the families of abused elders can bring civil suits against nursing homes for negligence and wrongful death, among other applicable torts. (41) In most cases, it is difficult to recover against the nursing home because more often an individual employee or a group of employees are found responsible rather than the facility's policies and practices. (42) Elder law scholars argue that Congress has failed to be more preventative and interventionist in cases where institutional negligence is apparent. (43)
Even when victims and their estates are able to litigate their claims, litigation may be unduly burdensome these individuals. (44) Nursing homes typically have more financial resources than the victims, and are more likely to settle in order to avoid bad publicity. (45) In addition, nursing homes often make patients sign an arbitration agreement, which further reduces the visibility and awareness of elder abuse. (46) However, even when the elder or the elder's estate recovers damages, this does little to prevent future instances of harm to other elders. (47)
C. Prevention and Treatment
Though the federal government acknowledges that elder abuse is a national issue, many of the legal resources and remedies elders can use against abusive nursing homes exist at the state level with no comparable federal counterpart. (48) At the federal level, the closest piece of legislation is the Elder Justice Act, which authorizes substantial funding for the establishment of The Elder Coordinating Council and the Elder Abuse, Neglect, and Exploitation Forensic Centers. (49) It also provides funding for a thorough study of state laws and practices that relate to elder abuse. (50)
At the state level, remedies vary across the country. (51) For example, California has a sophisticated system of penalties that are triggered by substantiated reports of elder abuse. (52) As a result, it is often cited by studies of elder abuse for the recourse available to elders through the state judicial process. (53) Other states have similar legal mechanisms to protect their elders, including mandatory reporting laws, penalties for noncompliance, and state intervention to implement remedies after a deficiency finding. (54) Even in states where reporting requirements and regulations are effective, the MSR and state remedies exist separately from one another. (55) As a result, even diligent consumers may fail to use both federal and state tools in order to evaluate potential care facilities for their elders. (56)
Like Rosewood, there are many other nursing homes that attain high star ratings, but also have had numerous complaints filed against them at the state and local levels. (57) The rating system's methodology may portray "nursing homes ... as much better than they really are." (58) For example, although Bartley Healthcare Nursing & Rehabilitation in New Jersey has an overall five star rating, it received only two stars for staffing. (59) Another example involves a New Jersey facility that was given a two star rating following an incident in which a patient was erroneously allowed outside. (60) Prior to this incident, the nursing home had been a five star facility. (61) This suggests that the overall star rating may be at odds with the various data measures and overall enforcement and oversight challenges. (62)
New York Times reporter Trudy Lieberman conducted an informal and extremely brief survey of nursing homes, which revealed the questionable reliability of the star rating system. (63) While state contact information is made available through Medicare's website, which includes how to file complaints against nursing homes, that information is not incorporated into the star rating, which results in a misleading rating system and an extra burden on consumers. (64) Indeed, most states refer back to the federal Comparing Nursing Homes tool on Medicare's website. (65) This cyclical referencing can lead the consumer to no information at all. (66)
Although complaint processes are state based and may vary, there is at least one regional staff member for MSR that can alter a nursing home's star rating based on complaints and investigations. (67) Treating elder abuse should include not only a recovery for the victim, but also a preventative component that modifies the practice or custom that led to the abuse in the first place. (68) Congress recognized the need for a system that acted as an oversight mechanism because it was aware that elders are vulnerable and, as a result, can be exploited by caregivers. (69) While the intent of Nursing Home Compare was consumer awareness, there has been support to include complaints and abuse allegations into the consumer friendly comparison tool. (70)
The MSR, also referred to as Nursing Homes Compare, is available online and is supported by Medicare's website. (71) It utilizes three measures to generate a performance measure star rating, where five stars is intended to describe the best and most qualified nursing home in health inspections, staffing, and quality. (72) The "health inspection" measure is based on state inspection outcomes. (73) The "staffing measure" is based on resident nurse hours and total staffing hours. (74)
The "quality measures" or "QMs" are based on a set of eighteen measures defined by CMS that take into account both long stay and short stay patients. (75) Though the system has been in place since 2008, criticism was widespread by 2014, largely because of how the QMs are weighted and what they purport to measure. (76) Interestingly, Nursing Home Compare does not provide pricing information. (77) Instead of price-based decision-making, the Nursing Home Compare tool utilizes alternative data by way of the QMs to determine the facility's rating. (78) For example, the star rating does not account for individual complaints or pending investigations, nor does it take into account ongoing administrative, civil, or criminal proceedings. (79)
Despite these shortcomings, CMS remains publicly supportive of the MSR and will expand the system to other areas of healthcare including hospitals, home health, and dialysis treatment. (80) These expansions reflect the congressional intent that led to the creation of MSRs. (81) In fact, during 2014 and 2015, there has been an increased interest in using ratings systems to evaluate federal programs and departments. (82)
MSR's reliability has been widely questioned and criticized. (83) This is because a large component of the overall star rating is derived from the nursing home's self-reporting. (84) Though the overall purpose of the MSR is to provide an objective marketplace measure, the data upon which the measure relies has been criticized as being too subjective. (85) Medicare addresses this concern by stating that the self-reporting portion of the MSR contains business records kept in the course of the nursing homes operations. (86) Additionally, objective federal and state inspectors may investigate a nursing home to verify the self-reported data. (87) Practically, however, few federal investigations are made because nursing home regulations are enforced at the state level. (88) As a result, federal investigators rarely review abuse reports, and because state inspectors are responsible for a high number of cases, their findings are not often reflected on Nursing Home Compare, (89)
The Internet provides a unique opportunity for non-government entities to distribute federal information in a different way. (90) For example, ProPublica designed Nursing Home Inspect in August 2012 using government reports and other information obtained through Freedom of Information Act requests. (91) Nursing Home Inspect provides a powerful database that makes it possible for consumers to search deficiency reports by state, and type and severity of abuse. (92) However, the website acknowledges that some data is misleading, as the existence of a deficiency, or lack thereof, may not be probative of a facility's quality. (93) In fact, "[almost] all nursing homes have been cited for some deficiencies, so citations are not necessarily an indication that a home is subpar." (94) As a point of reference, on the Nursing Home Inspect profile page for each facility, there is a link to the home's profile page on Nursing Home Compare. (95)
C. Time Delays in Recovery
Rosewood raises concerns about how victims and families can challenge star ratings and hold facilities responsible for failing to report deficiencies or comply with federal mandates. (96) Although Article (111) courts have not yet determined how to deal with lawsuits based on the MSR, there is an expansive Article I system of administrative law judges ("ALJ") that hear cases involving Medicare insurance program disputes. (97) Additionally, most nursing home stay agreements contain arbitration clauses that must be signed by patients or their families. (98) Finally, elders and their families may file complaints to the state's public health department, but subsequent investigations, fines, or compliance orders are often delayed. (99) Furthermore, a heavy backlog of complaints is common in all of these mechanisms, and many elders pass away before an investigation even begins. (100)
Most of the claims elders may bring against a nursing home are subject to first review by the federal appellate process because the majority of elders that stay in facilities use some form of Medicare subsidy. (101) Providers must use the appellate process to recover if their claims have been denied. (102) Elder abuse cases may still arise under the appellate process if claim payments are denied on the basis of elder abuse or neglect, however, elder advocacy is not the main thrust of these cases. (103) There are four levels to the appeals process, and only after all of those levels have been exhausted may the appellant seek review in federal district court. (104) The Office of Medicare Hearings and Appeals ("OMHA") and ALJs have been designated to handle the majority of issues arising from Medicare. (105) Victims of elder abuse might bring various claims before an ALJ if they include a complaint arising under the insurance program. (106) A hearing before an ALJ is part of a larger appellate scheme. (107)
The first step is an initial claim determination of whether payment should be made. (108) A medical contractor will conduct a claim examination if the appellant files a written redetermination request within (120) days from the initial claim determination. (109) The medical contractor could be a fiscal intermediary, carrier, or Medicare Administrative Contractor and is from a different category of personnel than the person who made the first determination. (110) There is no minimum fee amount required to file, and an appellant may appoint a representative for herself using Form No. 0938-0950), which is available on the CMS website. (111)
The next level of review takes place before a qualified independent contractor ("QIC"), who has been designated to hear Part A appeals, Part B appeals, or appeals concerning durable medical equipment, prosthetics, orthotics, and supplies. (112) The appeal must be filed within 180 days of the redetermination, and a decision will be made and sent to all parties within 60 days of the request for reconsideration (113) Though it is not necessary to provide more information than what was provided in earlier determinations, any evidence not provided at the reconsideration will be excluded from subsequent appeals unless the appellant can prove good cause for not submitting the evidence earlier. (114)
A hearing via video or telephone conference before an ALJ is the third level of appeal and is only available if the amount in controversy is $150 or more. (115) To obtain an in-person hearing, the appellant must demonstrate good cause, and the ALJ will make a determination as to whether that is appropriate on a case-by-case basis. (116) Generally, a decision will be issued within 90 days of the hearing request although this timeline may be extended if the circumstances justify it. (117)
The ALJ's decision may be appealed to the Medicare Appeals Council ("MAC"). (118) Any party may appeal the ALJ's findings, regardless of the amount in controversy. (119) The review request must specify the contested issues and findings and be submitted within (60) days. (120) The MAC will generally issue a decision within 90 days, although the timeframe may be extended for the same various reasons as appellant review by an ALJ. (121)
The final level of review available to a complainant is judicial review before the Federal District Court. (122) Similar to the appellate review of an ALJ's decision, any party may appeal the MAC's decision, however, the amount in controversy must meet the threshold of $1,460. (123) A Federal District Court hearing must be requested within 60 days of the MAC's decision.
Despite the ability of elder abuse victims to use the Medicare appeals process to advance claim denials on allegations of elder abuse, it is not commonly pursued. (124) In fact, most nursing homes now include a mandatory arbitration clause in their stay agreements. (125) While this does not necessarily mean that elders and their families do not have recourse against elder abuse, it does mean that most instances of elder abuse get far less attention than they would if there was a full jury trial. (126) Arbitrators may impose penalties and fines on nursing homes and may award damages as they see fit in cases where elder abuse is substantiated. (127)
Instances of elder abuse may also give rise to criminal proceedings. (128) In such cases, prosecutors must contend with issues of evidence and reliability. (129) Even in cases where prosecutors cannot bring criminal charges, elders, their families, and other concerned individuals can file local and state level complaints against nursing homes. (130) The ombudsman and the state's public health department investigate allegations of abuse and nursing home conditions when local and state complaints are filed. (131) An investigation could not only yield favorable results for the victims and their families, but the state's awareness of potential harm to elders can prevent future cases from occurring and mitigate instances of abuse that were unknown at the beginning of the investigation. (132) Despite these advantages, state and local investigations are costly and time consuming, and facilities may change their practices and behaviors while the investigation is pending, therefore rendering the investigation's findings useless. (133) Furthermore, where instances of abuse are investigated and confirmed, it is unclear whether resulting penalties on facilities help prevent future instances of abuse. (134)
A. Justice for Victims of Elder Abuse
The general landscape of legislation pertaining to elders is a complex patchwork of intersections between state laws and federal Medicare regulations. (135) While there is certainly a social construct of what defines elder abuse, the legal definitions vary. (136) As a result, so do the available statutory remedies. (137) Additionally, such legislation could foster the establishment of a federal baseline for evaluating elder abuse by changing the Nursing Home Compare website and QMs to reflect state-level complaints and state inspections. (138) Consumers should be better informed about their healthcare options and CMS is best situated to facilitate that process. (139) Part of the rationale underlying that notion is that nursing homes are subsidized by federal money through public insurance programs, like Medicare and Medicaid, and through government loans. (140)
B. Consumers Advantages
Nursing Home Compare provides the basis for a framework that could benefit from the integration of state and local data. (141) The site's star rating system has become the "golden standard" of long-term elderly healthcare in America. (142) It provides a comprehensive list of nursing homes that accept Medicare and includes information on how to compare facilities regarding safety, staffing, and quality of care. (143) Regardless of whether Nursing Home Compare was intended to create a federal baseline for nursing home care, it is the perfect tool for doing so. (144)
Because state remedies for elder abuse are available, a federal flurry of legislation ought not to replace state laws and frameworks that punish elder abuse. Rather, Congress should revisit the area of elder law because federal laws would benefit everyone by addressing elder abuse, neglect, and the general failure to provide elders with justice. (145) The Elder Justice Act ("EJA"), for instance, lays out a comprehensive, bipartisan scheme for regulation of care, as well as a means for reporting abuse. (146) Similar to how CMS funding and nursing home regulation were revisited via the IMPACT Act, a reevaluation of the EJA may lead not only to improvements in nursing home measures, but also in the overall quality of elder law in America. (147)
In addition to federal and state legislation, elders and their families would also benefit from public access to information about nursing homes that require patients to sign arbitration clauses. (148) Arbitration has become more prevalent as a requirement for admission into nursing homes, and as a result, the visibility of elder abuse and neglect has decreased. (149) While the Nursing Horn Compare tool is likely not the best forum to challenge arbitrating elder abuse, it can provide information about what the stay agreements between consumers and facilities look like. (150) For example, it could highlight whether arbitration clauses are standard, or if facilities pay for mediation. (151) This information is not typically what elders and their families are looking for when researching a facility. (152) However, it is information that consumers should be made aware of, and that information could be easily provided on Nursing Home Compare. (153) Overall, this suggestion for general disclosure only brushes the surface of advances that could be made in legislation and regulations that would facilitate elder justice access. (154)
Moderate changes to Nursing Home Compare would modernize the current standard of nursing home care. (155) Not only would integrating this state-level information strengthen state and federal relations, how the website conveys that information could alter information access for consumers. (156) The current tool provides a glimpse of a much larger picture. (157) Incorporating the state level information into the overall star rating would provide a more comprehensive overview of a facility. (158) States are best situated to enforce elder abuse and, therefore, are more likely to be the most reliable in accurate reports of facility inspections and care quality. (159)
Creating a separate state rating system accessed through the federal online tool would help facilitate the larger goal of the CMS website, which is to encourage consumers to proactively investigate facilities and contact state agencies and departments. (160) A downloadable deficiency list would allow consumers the luxury of comparing and contrasting care facilities based on reported violations and the number of investigations. (161) The ability to locate information from multiple states would help consumers tailor their investigations and site visits. (162)
This modification could also help facilitate state creation of an online database of state violations. (163) By providing state-based information on the federal site, a single site visit would be enhanced by the Nursing Home Compare tool, giving consumers an idea of appropriate questions and concerns when visiting nursing homes or discussing options with an advisor or the nursing home itself. (164) However, a state based system could vary in so many ways from the federal tool, particularly with regards to quality measures and star categories, that having various state designed tools listed together may not be the best way to assist consumers. (165)
When choosing a care facility, families should be at least aware of arbitration because arbitration waivers are prevalent in most admissions agreements. (166) Since most consumers are unaware of the legal ramifications of agreeing to arbitrate all claims against a nursing home, the online tool could be an important source of information regarding contracting with facilities for elder care. (167) It may not make sense to base a star rating on whether or not a nursing home has an arbitration clause in its admission contract, however, Nursing Home Compare currently has sorting tools that could be slightly modified to filter homes by whether or not they have arbitration clauses. (168) Alternatively, arbitration information could be added to existing facility information pages as a prerequisite to admission and listed along with nursing home information, overall rating, health inspections, staffing, quality measures and distance. (169)
C. Useful Models
For-profit companies involved in selling numerous services and products are measured with online comparing tools. (170) The uniqueness of Nursing Home Compare is supposed to be its reliable and verifiable data. (171) In the case of Rosewood, the star rating was misleading because easily found information would have resulted in a more accurate star rating. (172) Part of the Affordable Care Act ("ACA") calls for changes to be made to the Nursing Home Compare tool, but that does not mean, nor does this note suggest, that the online tool has failed. (173) The shortcomings observed by this note, legal scholars, and the media should serve as a starting point for improvements. (174)
The Nursing Home Compare tool would benefit from utilizing existing models as guidance. (175) Unlike when the tool was first implemented, using online comparisons for services and sources of information is now prevalent. (176) Though the majority of review tools are part of the for-profit industry, some localities and states have created consumer information hubs. (177) Some states publish yearly or quarterly reports regarding elder abuse or nursing home inspections online. (178) The star rating system could be improved by looking at other measuring styles created by other inspectors and lawmakers. (179)
For example, Alabama's Department of Public Health makes nursing home information available through its website. (180) The online searching tools are available through the Health Care Facilities Deficiencies section of the website and enable users to search facilities by type, county location, and name. (181) In addition, the website provides licensure status and full deficiency reports including evidence, findings, and the inspector's name and qualifications. (182) Providing this type of information on Nursing Home Compare would not only benefit consumers, it would strengthen the awarded star rating and demonstrate that the federal website's information is accurate and reliable.
Similarly, at the federal level, ACA created a marketplace for comparing options and gathering information online about the quality of available healthcare. (183) Federally regulated comparison tools mimic free market consumers products more and more. (184) However, federal tools should be more reliable because the government can verify information that would normally be subject to the motivations of private individuals and companies. (185) Ideally, Nursing Home Compare would blend the ease of most consumer search tools with the reliability of being able to verify confidential and difficult-to-locate information.
Nursing Home Inspect provides both a critique of Nursing Home Compare and an alternative model for presenting inspection information. (186) Nursing Home Inspect takes a numbers-based ranking system as opposed to Nursing Home Compare's star rating system. (187) This number-based approach is a more concrete approach because the values reflect the number of deficiencies and the dollar amounts of fines, which are both more readily understood by consumers. (188) Additionally, Nursing Home Inspect provides a summary page that clearly shows what the state landscape of nursing home care is by providing the number of homes, total deficiencies, average deficiencies per home, total fines, average fines, and number of suspension payments. (189) This way of organizing information makes it easier to browse through a state's nursing homes and compare fines and deficiencies more quickly. (190)
Critiques of Nursing Home Compare in the media are also useful in understanding how consumers use the tool and providing guidance for improvement. (191) Importantly, media coverage illuminates what consumers reasonably expect when they use Nursing Home Compare. (192) Essie Chandler's experience at the Rosewood care facility provides a particularly good example of consumer expectations because her son chose to put her in that facility based on its rating by the federal government. (193) The discovery of other instances of elder abuse and lawsuits against the facility despite its five star rating was particularly upsetting to Chandler's family and also to the public. (194)
Nursing Home Compare is a great government-created model to look at in developing more informative changes to the already useful tool. (195) The initial search feature is clean and easy to understand and use. (196) As the IMPACT Act recognizes through its allocation of resources, it is a popular delivery system for information about nursing home care. (197) As Congress continually reviews and modifies Nursing Home Compare, policymakers will have more information to work with and a better idea of workable changes. (198)
The Centers for Medicare and Medicaid Services ("CMS") website is tasked with conveying a large amount of information in a comprehensive format. (199) Nursing Home Compare is only a piece of that website, and it certainly cannot be expected to convey all of the intricacies of Medicare as it relates to the quality of long-term care. (200) However, it is important to understand that the tool has been so successful that it has led to the development and implementation of several other compare tools on the federal government's websites. (201)
While the website's breadth and scope of its searching ability is inherently limited by the sheer number of facilities and possible search criteria available, online capabilities regarding data in general are constantly improving. (202) As a result, what CMS can do in 2015 compared to what it could convey when it was first implemented in 2008 has changed greatly. (203) Consumer access to and the reliability of the Internet have improved along with the ability to interact with online tools. (204) Though there are tens of thousands of facilities participating in Medicare programs, it is possible to make more information about them available while also maintaining the site's integrity and the consumer tool's reliability. (205)
The ability of Nursing Home Compare to provide a meaningful consumer compare tool is challenged by the sheer volume of necessary information. Collecting information about all nursing homes that receive a Medicare subsidy cannot solve all instances of elder abuse, nor can it improve the backlog of complaints and investigations currently faced by most states; however, Nursing Home Compare is a well-recognized and respected tool in the nursing home community that will raise awareness about these issues. (206) As evidenced by the cases discussed above, long-term care facilities actively try to improve their ratings through compliance and by proactively preventing and addressing elder abuse. (207)
There is no replacement for thoroughly investigating potential placements in a nursing home with an expert; however, it is unreasonable to expect all families to have the resources in order to do so. Congress recognized this when it enacted the legislation that gave rise to Nursing Home Compare. As Nursing Home Compare implements changes to the star rating system, it is also important for Congress to use Nursing Home Compare in order to alert consumers to potential legal pitfalls. State and local agencies also engage in inspections and are more involved than federal authorities in investigations of elder abuse. As such, Nursing Home Compare should showcase state reports and records. This would not only provide people with a more complete and accurate online resource, but the cohesion of state and federal information would help protect vulnerable elders and their families.
Kerry Koehler, J.D. Candidate, Suffolk University Law School, 2016; B.A., Williams College, 2013. Ms. Koehler may be contacted at email@example.com.
(1) See Katie Thomas, Medicare Star Ratings Allow Nursing Homes to Game System, N.Y. Times (Aug. 24, 2014), http://www.nytimes.com/2014/08/25/business/medicare-star-ratings-allow-nursing homes-to-game-the-system.html (detailing how ratings do not include negative information like fines, enforcement actions or complaints).
(2) Id. See also Vive Star Quality Rating, Medicare.gov, http://www.medicare.gov/NursingHomeCompare/About/HowWeCalculate.html (last visited Oct. 22, 2014) (describing how overall star ratings are based on health inspections, quality measures and staffing). The Nursing Home Compare tool allows users to research elder care facilities on its website. Id. It utilizes a five-star ratings system, with five out of five stars being the highest rating available, to rank facilities all over the country that receive funding from Medicare and Medicaid. Id. As a result, it presents a comprehensive source of staffing and safety information to consumers. Id. It allows families to research facilities for the elders. Id. See also Administration Plans Major Improvements to Nursing Home Compare, Center for Medicare ADVOCACY, http://www.medicareadvocacy.org/administration-plans-major-improvements-tonursing-home-compare/#_edn 1 (last visited Oct. 31, 2015) (discussing required review of Nursing Home Compare and possible changes through the Improving Medicare Post-Acute Care Transformation Act of 2014).
(3) Thomas, supra note 1 (describing abuse suffered by residents of the retirement home). See also Molly Hennessy-Fiske, California Nursing Homes to Begin Posting Federal Star Ratings, L.A. TIMES (Dec. 26, 2010), http://articles.latimes.com/2010/dec/26/local/la-me-nursing-home-20101227 (describing a California requirement that facilities to post their star rating).
(4) See Thomas, supra note 1 (detailing why Mrs. Chandler's son placed his mother at Rosewood). See also Complaint for Damages: (1) Elder Abuse (2) Wrongful Death (3) Violation of Resident's Bill of Rights (4) Negligent Infliction of Emotional Distress, Chandler v. Carmichael Care, 2015 WL 3482283 (Cal. Super. Ct. Feb. 19, 2015) (No. 34-2013-00144410-CV) (detailing the physical and emotion trauma suffered by the decedent). Emergency room medical staff discovered she had fractures in both tibia bones, a Stage 2 pressure sore on her sacrum and was severely dehydrated. Id.
(5) See id. Under the care of her son and hospice following a brief stay in Mercy San Juan Hospital emergency room, she died less than a year later. Id. She was never able to walk unassisted again. Id. See Thomas, supra note 1 (explaining how families rely on inaccurate ratings system when making decisions regarding elder's medical care).
(6) See Thomas, supra note 1 (discussing the legal issues involving Rosewood). Kenneth Chandler filed a wrongful death suit in Sacramento County Superior Court, against Rosewood's parent company, North American Health Care, Inc., alleging elder abuse. See Complaint for Damages, supra note 4.
(7) See Thomas, supra note 1. Problems at Rosewood resulted in 102 consumer complaints from 2009-2013. Id. In comparison, there were twenty-six facility self-reported incidents in the same time period. Rosewood Post Acute Rehabilitation, California Dep't of Public Health, http://hfcis.cdph.ca.gov/LongTermCare/Facility.aspx?fac=030000076 (last visited Oct. 27, 2015). Rosewood has also been the subject of several lawsuits from families alleging substandard care, precisely because the five-star rating is so impressive to prospective families. See supra note 1 and accompanying text (discussing abuse and neglect at Rosewood).
(8) See supra note 1 and accompanying text (discussing other legal actions against Rosewood and its parent company, North American Healthcare, Inc.).
(9) See Nursing Home Compare, Medicare.gov, http://www.medicare.gov/nursinghomecompare/search.html (select "Nursing Home Compare, search California and Rosewood, and select "Rosewood Post Acute Rehabilitation) (last visited Oct. 24, 2015) (discussing the relevant profile information).
(10) 42 U.S.C. [section] 1396r (i) (2012) (requiring HHS Secretary to make certain information available on Nursing Home Compare website). See generally Nursing Home Compare, supra note 9 (allowing users to compare nursing homes by location and view their current rating).
(11) See Nursing Home Compare, supra note 9 (allowing users to compare nursing homes by location and view their current rating). Nursing Home Compare was initially proposed in 2007 by Senator Ron Wyden based on the idea that placing loved ones in retirement homes should be as an informed a decision as purchasing household items. See Charles Duhigg, Washington Scrutinizes Nursing Homes, N. Y. TIMES (Nov. 16, 2007), http://www.nytimes.com/2007/11/16/business/16care.html?module=Search&mabReward= relbias%3Ar%2C%7B%221%22%3A%22RI%3A6%22%7D (explaining the legislative history to create transparency with the quality of care in nursing homes). In September 2007, The New York Times ran a story explaining how private equity firms purchased nursing homes and implemented complex restructuring to avoid liability when patients suffered from neglect. Id. Additionally, these firms would increase profit by cutting expenses such as staffing. Id. In response to increasing concerns about the vulnerability of elders, Congress passed 42 U.S.C. [section] 1396r to impose legal obligation on nursing homes, such as ensuring quality of care, necessary' training for staff and residents' rights. Requirements for Nursing Facilities, 42 U.S.C. [section] 1396r (2012).
(12) See Duhigg, supra note 11. See also Eljay, LLC, A Report On Shortfalls In Medicaid Funding for Nursing Center Care 9 (2014), http://www.ahcancal.org/research_data/funding/Documents/FINAL%202013%20Medicaid% 20Underfunding%20for%20Nursing%20Center%20Care.pdf (describing the impact on facilities that are financed by Medicare and Medicaid). See Kaiser Commission on Medicaid and the Uninsured: Implementation of Affordable Care Act Provisions to Improve Nursing Home Transparency, Care Quality and Abuse Prevention, The Kaiser Family Foundation (Jan. 2013), at 9-10, available at http://www.canhr.org/newsroom/newdev_archive/2013/ACA%20Nursing%20Home%20Rep ort.pdf (explaining the relationship between the Nursing Home Compare tool online and consumer choices). Rut see Danny Swewak, One Third of WNY Nursing Homes Rated "Relow Average," WGRZ (May 16, 2014), http://www.wgrz.com/story/news/local/niagara-county/2014/05/16/nursinghome-ratings/9183875/ (explaining that ombudsman, Melanie Keen, stated that star ratings are only "a piece" of the decision making).
(13) See Five-Star Quality Rating System, CMS.GOV, http:// www.cms.gov/Medicare/ProviderEnrollment-and- Certification/CertificationandComplianc/FSQRS.html (last modified Oct. 23, 2014) (discussing the system overall and providing all user guides since 2009). See also Duhigg, supra note 11 (discussing political pressures leading to requiring nursing homes to be more accountable); Kaiser Commission on Medicaid and the Uninsured, supra note 12, at 7 (explaining Congressional hearings and describing Medicare does not require proceed allocation to patient care). An additional complication arises when nursing homes continue to receive high MSR ratings, despite reports of elder families because families continue to base their placement decisions on MSR ratings. See Bryn Mawr Care, Inc. v. Sibelius, 749 F.3d 592, 596 (7th Cir. 2014) (responding to a decrease to four stars with plaintiff arguing it suffered a Constitutional rights violation). See also Christopher Weaver, Chasing the Stars, Insurers Improve Quality--and Revenue, Kaiser Health News (Oct. 12, 2011) http://kaiserhealthnews.org/news/insurers-improve quality-revenue/. "'[S]tars equate dollars' ... [and providers are now asking] how can you get to five stars?"' Id.
(14) See U.S Gov't Accountability Office, GAO-11-280, Report to Nursing Homes: More Reliable Data and Consistent Guidance Would Improve CMS Oversight of State Complaint Investigations 25 (2011), available at http://www.gao.gov/assets/320/317514.pdf (describing improvements made to MSR and the complaint process to improve investigations and oversight). See also Dawn Snyder, Medicare Star Rating Overlooks Evidence of Nursing Home Abuse, MEDSTAK (Sept. 15, 2014), http://medstak.com/2014/09/medicare-star-rating-overlooksevidence-nursing-home-abuse/ (discussing how the system is undermined through flawed measures, especially self-reporting by nursing homes).
(15) See Priscilla Vargas Wrosch, What More Can Congress Do About the Elder Abuse Epidemic? A Proposal for National Movement, 23 Temp. Pol. & Civ. RTS. L. Rev 1, 3 (2013) (arguing in favor of national reform allowing the federal government to be more proactive in combating elder abuse). One possibility officials identified is requiring nursing homes to report staffing with supportive payroll information and the percentage of patients prescribed antipsychotic drugs. See also Katie Thomas, Medicare Revises Nursing Home Rating System, N.Y. Times (Oct. 6, 2014), http://www.nytimes.eom/2014/10/07/business/medicare-alters-its-nursing-home-ratingsystem.html?_r=0 (describing changes for 2015).
(16) See infra Part II and accompanying text (providing discussion on historical and legislative context regarding elderly abuse). There are several federal regulations that recognize elder abuse rights, and provide protections against elderly abuse. See generally infra notes 26, 28-29, 34, 37 and accompanying text (highlighting key regulations that oversee elderly abuse issues). Furthermore, states are independently responsible for prosecution of claims of elder abuse. See generally infra notes 51-53 and accompanying text (presenting the legal system of the state of California as one example of a sophisticated penal system).
(17) See infra Part III and accompanying text (presenting in-depth explanation on Medicare Star Ratings System and analysis on its resulting impact).
(18) See infra Part IV and accompanying text (suggesting industry' improvements promoting transparency efforts would enhance current regulatory standards on nursing home quality). Federal standards are favored because of its ability to have a collective impact and its likelihood to standardize the legal system across the nation, removing the variance between state systems. See infra note 48 (indicating the issues that result from a disparity in state legal systems).
(19) See Sarah Sandusky, The Lawyer's Role in Combating the Hidden Crime of Elder Abuse, 11 Elder L.J. 459, 461-62 (2003defining types of elder abuse). Elder abuse can be sexual, financial, physical, and emotional. Id. Because elders tend to suffer from physical and emotional vulnerabilities to a greater degree that most of the rest of the population, elders may be unable to communicate their abuse. Id. at 467. Additionally, they tend to be more financially stable or affluent, which can increase the likelihood of abuse. Id. at 467-68. All these special challenges exist alongside widespread problems that cross differences, such as racism and classism. See also Ruqaiijah Yearby, African Americans Can't Win, Break Even, or Get Out of the System: The Persistence of "Unequal Treatment" in Nursing Home Care, 82 TKMP. L. Rev. 1177, 1180 (2010explaining disparities in treatment for poor and minority' elders).
(20) See supra note 16 and accompanying text (discussing how elders are a vulnerable population subject to exploitation and abuse).
(21) See supra note 16 and accompanying text (discussing how elders are a vulnerable population subject to exploitation and abuse).
(22) See Yearby, supra note 19, at 1180.
(23) See generally Clifford Ward, Two Workers at Care Center Accused of Elderly Abuse, CHICAGO TRIBUNE (Mar. 14, 2014), http://articles.chicagotribune.com/2014-03-14/news/chi-twoworkers-at-care-center-accused- of-elderly-abuse-20140314_1_elderly-abuse-certified-nursing- assistants-two-workers (describing employees who were charged with crimes in elder abuse); David Ruppe, Elderly Abuse at 1 in 3 Nursing Homes: Reports, ABC NEWS, (July 30, 2014) http://abcnews.go.com/US/print?id=92689 (explaining that federal government is the biggest contributor of nursing home care through Medicare).
(24) See Wrosch, supra note 15, at 11 (discussing ageism's impact on the victim's credibility, which leads to blaming the victim).
(25) See Cathy McNamee & Mary B. Murphy, Elder Abuse in the United States, Nat'l. Inst. OF JUSTICH, http://www.nij.gov/journals/255/pages/elder_abuse.aspx (last visited Oct. 31, 2015) (describing a lack of training amongst medical providers and law enforcement to handle elder abuse).
(26) See generally Social Security Act, 42 U.S.C. [section] 1305 (2012); Older Americans Act of 1965, 42 U.S.C. [section] 3001 et seq. (2012); Prevention of Elder Abuse, Neglect, and Exploitation, 42 U.S.C. [section] 3058i (2012); Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010codified as amended in scattered sections of 26, 42 U.S.C.).
(27) See Sandusky, supra note 19, at 461-62. See also Daniel L. Madow, Why Many Meritorious Elder Abuse Cases in California are not Litigated, 47 U.S.F. L. Rev. 619, 620, 634-35 (2013explaining practical concerns about elderly witnesses such as ageism, illness, and death). For example, the Elder Justice Act ("EJA") was signed into law in 2010, but remained unfunded in 2014. See Kirsten Colello, Cong. Research Shrv., R43707,Thf: Elder Justice Act: Background and Issues for Congress 11 (2014), available at http://fas.org/sgp/ers/misc/R43707.pdf (describing other mandates for federal funding of elder activities); Polity & Advocacy, Elder Justice Act, Nat'l Adult Protective Services Assoc'n, http://www.napsa-now.org/policyadvocacy/eja-implementation/ (last visited Oct. 31, 2015discussing the Act and other legislation NAPSA supports).
(28) See Administration on Aging, Older Americans Act, U.S. Dep't of Health and Human Services., http://www.aoa.gov/AoA_programs/OAA/ (last visited Oct. 25, 2015discussing Congressional intent and history of the OAA).
(29) See 42 U.S.C. [section] 3001. See also Colello, supra note 27, at 3. The OAA makes provisions for elder abuse prevention by allowing the Administration on Aging Secretary to designate someone as responsible for "elder abuse prevention and services including the development of objectives, priorities, and long-term plans for elder justice; supporting state elder abuse prevention activities; and supporting research, data collection, and information dissemination related to elder abuse." Id. Another section in the OAA provides for the National Ombudsman Center, which supports state ombudsman. Id.
(30) See Colello, supra note 27, at 15 (explaining the Elder Justice Act may serve as a catalyst bringing awareness to elder abuse).
(31) See supra note 27 and accompanying text (describing and organizing federal programs, grants and initiatives addressing elder abuse prevention, detection, and treatment).
(32) See Colello, supra note 27, at 2-3 (describing the provisions of the Elder Justice Act).
(33) Id. at 9. "The [U.S. Dep't of Health and Human Services! Secretary is ... required to award grants to state survey agencies that perform surveys of Medicare or Medicaid participating facilities to design and implement complaint investigation systems." Id. "To date, Congress has not provided discretionary funding for these activities through the annual appropriations process." Id. See also Before Nursing Home Compare, Most Nursing Home Selections Were Made on Accommodation Quality, Not Clinical Care Quality, Elderly Health /Long-Term Care, Agency for Healthcare; Res. and Quality (Sept. 2013), http://www.ahrq.gov/news/newsletters/research-activities/13sep/0913RA29.html (explaining that quality of care has not historically been a primary consumer concern when choosing a facility).
(34) Improving Medicare Post-Acute Care Transformation Act of 2014 ("Impact Act of 2014"), Pub. L. No. 113-85, 128 Stat. 1952 (2014).
(35) IMPACT Act of 2014, 128 Stat. at 1966 (allocating $11M of funding to the Nursing Home Compare website).
(36) IMPACT Act of 2014, 128 Stat. at 1952-53 (requiring skilled nursing facilities to submit patient assessment data).
(37) See IMPACT Act of 2014, 128 Stat. at 1952-68 (demonstrating that the Impact Act of 2014 does not mention MSR or objective measures).
(38) See CMS Announces Two Medicare Quality Improvement Initiatives, CMS.GOV (Oct. 6, 2014), http://www.cms.gov/Newsroom / MediaReleaseDatabase/Press-releases/2014-Press-releasesitems/2014-10-06.html (discussing modernizing and improving the Nursing Home Five Star Quality Rating System).
(39) Id. See also Colello, supra note 27 (describing how various federal statutes require data collection about elder abuse).
(40) See Duhigg, supra note 13 (discussing congressional hearings concerned about quality of care in nursing homes declining).
(41) John A. Pearce II et al., Protecting Nursing Home Residents from Attacks on their Ability to Recover Damages, 61 Rutgers L. Rev. 705, 715 (2009). As such, nursing homes can find themselves subject to lawsuits ranging from negligence to assault to wrongful death. See David Jackson & Gary Marx, Nursing Home Sexual Violence: 86 Chicago Cases Since July 2007--But Only 1 Arrest, Chicago Tribune (Jan. 26, 2010) http://artides.chicagotribune.eom/2010-01-26/health/ctmet-nursing-home-rape- 20100126_1_rainbow-beach-care-center-faith-pavilion-state-records (detailing how nursing homes failed to report abuse despite mandatory abuse laws); Jonathan Rosenfeld, Nursing Homes Hesitant to Cooperate With the Prosecution of Their Own Staff, NURSING HOME ABUSE Blog (Jan. 25, 2013), http://www.nursinghomesabuseblog.com/national-nursinghome-issues/nursing-homes- hesitant-to-prosecute-their-own/ (arguing that profits and revenues deter nursing homes from cooperating in criminal proceedings).
(42) Linda Chen, Eradicating Elder Abuse in California Nursing Homes, 52 SANTA CLARA L. Rev. 213, 229 (2012) (describing California state law that allows elders to recover damages in civil suits).
See generally Patricia E. Dilley, Hope We Die Before We Get Old: The Attack on Retirement, 12 ELDER L. J. 245, 321 (2004) (discussing historic construction of modern retirement).
(43) See Wrosch, supra note 15, at 3 (encouraging the federal government and society to foster a national concern for elder abuse). Some states such as California provide comprehensive causes of action and means to recover, but even in such a favorable environment, there are substantial barriers to litigation for victims. See Meadow, supra note 27, at 620 (discussing personal, financial, administrative and legal obstacles to litigating an elder abuse case).
(43) Nina A. Kohn, The Future of Elder Law: The Lawyer's Role in Fostering an Elder Rights Movement, Wm. Mitchell L. Rev. 49, 63 (2010) (describing power structures that obfuscate elder's ability to access justice).
(44) Id. (describing power structures that obfuscate elder's ability to access justice).
(45) See Maurice W. Heller, U. Abuse and Neglect Litigation: Recent Developments, Trends and Prevention Techniques, AHLA Siminar Materials, https://www.healthlawyers.org/Archive/Program%20Papers%202/2005_LTC/[2005_LTC]%2 0Abuse%20and%20Neglect%20Litigation- %20Recent%20Developments,%20Trends%20and%20Prevention%20Techniques.pdf (last visited Nov. 1, 2015) (describing trends in nursing home litigation).
(46) See generally Michelle Andrews, Signing a Mandatory Arbitration Agreement with a Nursing Home Can be Troublesome, WASH. POST (Sept. 17, 2012), http://www.washingtonpost.com/national/health- science/signing-a-mandatory-arbitration-agreement-with-a-nursing-home-can-be- troublesome/2012/09/16/ccf851ba-6a2c-11e1-acc6-32fefc7ccd67_story.html (describing how consumers can be taken advantage of by mandatory arbitration agreements).
(47) See Andrea Tawill, Prosecution Versus Protection: Laws Defining Drug Activity as Child Abuse and Why Such Laws Should Apply Equally to Vulnerable Adult Abuse, 10 J.L. Society 99, 100-01 (2009) (detailing statutory protections for elders and the disparities across the country).
(48) See State Resources, Nat'l Center Elder Abuse, http://www.ncea.aoa.gov/Stop_Abuse/Get_Help/State/index.aspx (last visited Oct. 25, 2014) (enabling users to search statistics and data, state laws, agencies, and reporting numbers).
(49) See generally The Elder justice Act (S. 1070 / H.R, 1783), A.B.A, http://www.americanbar.org/content/dam/aba/migrated/aging/about/pdfs/Elder_Justice_Act _Sum_ABA_2.authcheckdam.pdf (last visited Nov. 29, 2015) (describing the Elder Justice Act).
(50) Id. Elder Justice Act funding is also available for states to research, investigate, and prosecute elder abuse, neglect, and exploitation. Id.
(51) See e.g., Reporting Elder Abuse, California Department of Consumer Affairs, http://www.dca.ca.gov/consumer/seniors/elder_abuse.shtml (last visited Jan. 22, 2014) (describing where complaints of elder abuse may be filed and providing URL contact information). See also Amanda Bassen, Patient Neglect in Nursing Homes and 1 song-Term Care Facilities in New York State: The Need for New York to Implement Programs and Procedures to Combat Elder Neglect, 8 CARDOZO Pub. L. Pol'y & Ethics J. 179 (2009) (comparing state approaches that could be adopted by New York, such as those by California).
(52) See Reporting Elder Abuse, supra note 51 (describing how elder abuse is reported and regulated in California).
(53) Reporting Elder Abuse, supra note 51 (describing elder abuse reports and regulations in California). Additionally, California has the most nursing homes with MSR rankings. See Adult Protective Services, Institutional Abuse and Long Term Care Ombudsman Program Law, A.B.A. (Dec. 31, 2006) http://www.americanbar.org/content/dam/aba/migrated/aging/about/pdfs/APS_IA_LTCOP _Citations_Chart.authcheckdam.pdf (listing state statutes that create remedies for victims). See also Chen, supra note 42, at 220-21 (discussing state challenges and legislation that protects elders).
(54) See generally Brenda K. Uekert, Elder Abuse and Neglect, http://cdml6501.contentdm.oclc.org/cdm/ref/collection/famct/id/218 (last visited Oct. 20, 2015) (describing the state court point of view for future elder abuse claims as the rate of abuse is increasing); Nat'l Ass'n of Adult Protective Services Administrators, Survey Report: Problems Facing State Adult Protective Services Programs and the Resources Needed to Resolve Them 4, (2003), http://www.ncea.aoa.gov/Resources/Publication/docs/NAAPSA7.pdf (discussing legal system problems such as lack of training, low rate of prosecution, and inadequate investigation).
(55) See supra note 2 and accompanying text (arguing how the MSRs fail to capture important state data in its rating system and quality measures).
(56) See generally L.S. Gov't Accountability Office, GAO-12-390, Nursing Homes: CMS Needs Milestones and Timelines to Ensure Goals for the Five Star Quality Rating SYSTEM Are Met 23 (2012), available at http://www.gao.gov/assets/590/589563.pdf (explaining MSR was developed in eight months with readily available information but needs more development).
(57) The Editorial Board, When five Star Care is Substandard, N. Y. TIMES (Aug. 25, 2014), http://www.nytimes.com/2014/08/26/opinion/medicares-flawed-ratings-for-nursing- homes.html?_r=0 (discussing flaws and inaccuracies in the overall ratings system).
(59) See Nursing Horn Compare, supra note 9 (showing disparity between overall rating and lower rating of individual factors). Type in "New Jersey" in the location and "Bartley Healthcare Nursing & Rehabilitation" in Nursing Home Name, and click search to view the nursing home profile. Id.
(60) See Ken Serrano, Nursing Home Ratings Don't Tell the Whole Story, DAILY Record (Jan. 25, 2015), http://www.dailyrecord.com/story/news/local/new-jersey/2015/01/25/nursing-home-ratings- tell-whole-story/22310289/ (explaining inconsistent enforcement and concerns with rating's methodology).
(62) See generally Julie Appleby, Effort To Reward Medicare Advantage Plans Draws Criticism, Kaiser Health News (Jan. 10, 2011), http://kaiserhealthnews.org/news/medpac-on-medicare- advantage-bonuses/ (describing controversial bonuses five and four star facilities receive for their high ratings).
(63) See Trudy Lieberman, New York Times Story Questions Obamacare's Nursing-Home Ratings, Facilities Have Named to Game the System, So Five Stars May Not Mean So Much, Columbia Journalism Rev. (Aug. 28, 2014), http://www.cjr.org/united_states_project/new_york_times_story_questions.php (discussing ways nursing homes manipulate system and rely on star ratings to get customers).
(64) See State Websites and Contact Information, MliDXCARE.GOV, http://www.medicare.gov/NursingHomeCompare/Resources/State-Websites.html (last visited Nov. 28, 2015) (providing state websites and URLs for filing complaints). See also Five Star Rating System for Skilled Nursing Homes, CT.GOV, http://www.ct.gov/ltcop/lib/ltcop/pdf/fivestarratingsystem.pdf (last visited Oct. 31, 2015) (describing the Five Star rating system as it relates to Connecticut facilities).
(65) See eg., Dep't of Public Health, Ct.gov, www.ct.gov/dph (last visited Nov. 28, 2015). Connecticut's Department of Public Health suggests using the federal tool, Nursing Homes Compare, for additional nursing home information not provided on its website. Id. Cf. Health Care Facilities, Alabama Pub. Health, http://www.adph.org/HEALTHCARLFACILITIES/index.asp?ID=749 (last visited Oct. 27, 2015). Providing a comprehensive search tool for Alabama allows consumers to select a facility and access a deficiencies report. Id.
(66) See David C. Gabrowski & Robert J. Town, Does Information Matter? Competition, Qualify and Impact of Nursing Home Report Cards, 46 Health Serv. Res., 1698, 1703 (2011), http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3393022/ (describing increase in online traffic following aggressive public awareness campaign).
(67) See generally How to File a Complaint: Health Information for Older People, Fed. Trade Commission, http://www.consumer.ftc.gov/articles/0321-howTtle-complainuhealth-information-older- people (last visited Nov. 29, 2015) (describing federal resources available to elders experiencing problems with products, services, and neglect).
(68) See Preventing the Abuse of Elders, Nat'l. Committed FOR The Prevention of Elder Abuse, http://www.preventelderabuse.org/ (last visited Nov. 30, 2015) (explaining costs of elder abuse and how treating the problem includes preventative measures like education and discussion).
(69) See generally John B. Breaux & Orrin G. Hutch, Confronting Elder Abuse, Neglect, and Exploitation: The Need for Elder justice Litigation, 11 Elder L.J. 207 (2003) (describing historical development of congressional concern regarding elder abuse). Most Nursing Home Inspect information is available through Nursing Home Compare. See infra Part III.B (comparing and contrasting the usefulness and reliability of the star ratings system). However, the use of stars and quality measures on Nursing Home Compare makes it difficult to understand the true meaning of a star. See supra notes 72-79 (discussing the five star rating system and how to interpret the data). See also infra Part 1V.D (evaluating potential challenges to reformation of the Nursing Home Compare tool). The result is that if a state experiences a large number of deficiencies, a nursing home may still have a high star rating despite numerous deficiencies and fines. See Thomas, supra note 1 (discussing the lack of negative information available in the five star rating system).
(70) See Serrano, supra note 60 (finding that although one third of nursing homes have five star ratings, it ranks fifth in the nation for prevalence of bedsores tying with Mississippi). Deficiency reports are available for past calendar years. See Certificate & Compliance, Five-Star Quality Rating System, CMS.GOV, http://www.cms.gov/Medicare/Provider-Enrollment-and- Certification/CertificationandComplianc/FSQRS.html (last visited Nov. 28, 2015) (select Complain Deficiencies 2006-2012 hyperlink at the bottom of the page, and download zip file to access key and deficiency reports).
(71) Nursing Home Compare, supra note 9.
(72) What are the Vive-Star Quality Ratings?, Medicare.gov, http://www.medicare.gov/NursingHomeCompare/About/Ratings.html (last visited Nov. 28, 2015) (describing importance of star ratings system and why information is valuable to consumers).
(73) Vive-Star Quality Ratings, supra note 2 (describing how quality measures are calculated).
(74) What Information Can I Get About Staffing, Medicare.gov, available at https://www.medicare.gov/NursingHomeCompare/About/Staffing-Info.html (last visited Oct. 30, 2015) (describing how the staffing measure is calculated).
(75) Design for Nursing Home Compare Vive-Star Quality Rating System: Technical Users' Guide, CMS.GOV, (Feb, 2015), http:// www.cms.gov/Medicare/Provider-Enrollment- andCertification/CertificationandComplianc/downloads/usersguide.pdf (describing scoring rules). These measures are available on Medicare's website. See Quality Measures, CMS.GOV, http://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment Instruments/NursingHomeQualityInits/NHQIQualityMeasures.html (last visited Nov. 28, 2015) (listing the measures).
(76) See Debunking Nursing Home Myths About Quality of Care and Enforcement of Federal Care Standards, CENTERS for Medicare ADVOCACY, http://www.medicareadvocacy.org/debunking-nursinghome-myths-about-quality-of-care- and-enforcement-of-federal-care-standards (last visited Nov. 28, 2015) (describing usefulness of MSR quality measures). See also Thomas, supra note 4 (describing how highly ranked nursing homes on Nursing Homes Compare may have troubling defects consumers should be made aware of).
(77) See Nursing Home Compare, supra note 9.
(78) See generally Kerry Weems, In the Hands of Strangers: Are Nursing Home Safeguards Working:?, HHS.GOV (May 15, 2008), http://www.hhs.gov/asl/testify/2008/05/t20080515a.html (describing action plan for Nursing Home Compare as consumer tool). These QMs are weighted in various ways to determine the overall star rating. See Debunking Nursing Home Myths, supra note 76. Generally, the higher the star rating, the more qualified a nursing home is compared to similar facilities in the area. Id.
(79) See Debunking Nursing Home Myths, supra note 76.
(80) Patrick Conway, Star Ratings Coming Soon to Compare Sites on Medicaid.gov, The CMS Blog (June 18, 2014), http://blog.cms.gov/2014/06/18/star-quality-ratings-coming-soon-to-compare-siteson-medicare-gov. The five star quality rating system will first expand to dialysis treatment facilities in January 2015. See Implementation of Dialysis Facility Compare Star Rating System, CMS.gov, http://www.cms.gov/Medicare/End-Stage-Renal Disease/ESRDGcnerallnformation/Downloads/Dialysis-Facility-Compare-Star-Rating-SystemDelay.pdf (last visited Oct. 21, 2015) (describing implementation process and considerations).
(81) See Richard J. Mollot, Esq., Using Law and Regulation to Protect Nursing Home Residents When Their Government Fails Them, Long Term Care Community Coalition, 5-6, http://www.ltccc.org/publications/documents/Using_Law_and_Regulation_to_Protect_Nursin g_Home_Residents_Updated_sept82006.pdf (last visited Oct. 24, 2015) (explaining congressional response to President decreasing nursing home regulations in 1980s leading to increased legislation). See also Nicholas G. Castle & Jamie C. Ferguson, What is Nursing Home Quality and How is it Measured?, 50 The Gerontologist 426, 426-27 (2010), available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2915498/pdf/gnq052.pdf (discussing history of nursing home quality). See also Requirements for, and Assuring Quality of Care in, Skilled Nursing Facilities, 42 U.S.C. [section] 1395i--3 (2012).
(82) Billie Cohen, Carly Fiorina Just Gave the TSA a Rad Review on Yelp, Yahoo!Travel, https://www.yahoo.com/travel/carly-fiorina-just-gave-tsa-a-bad-review-on-yel-p127076979512.html (last visited Oct. 22, 2015) (explaining that government agencies are encouraged to use Yelp to set us review pages for their services.). See Yelp, http://www.yelp.com/. Yelp is a popular website that allows users to make anonymous reviews for a variety' of services, including restaurants, hotels, bars and contractors. Id. See also, Five-Star Customer Experience in Public Service with Yelp, Digitalgov, https://www.digitalgov.gov/2015/08/07/five-star-customer-experience-in-public-service-with yelp/ (last visited Oct. 7, 2015) (encouraging agencies to utilize the relationship the federal government has created with Yelp to improve services).
(83) See supra note 1 and accompanying text (challenging the ratings system with examples of elder abuse at homes with high star ratings). See also CMS Announces Changes to Vive-Star Quality Rating System for Nursing Homes, McDermott Will & Emery (Oct. 8, 2014), available at http://www.mwe.com/CMS-Announces-Changes-to-Five-Star-Quality-Rating-System-forNursing-Homes-10-08-2014/ (describing source of star ratings and how legislation will change source and reliability of the ratings); Critics Argue Nursing Home Ratings Falls Short, Am. Soc'y FOR Quality (Jan. 12, 2009), http://asq.org/qualitynews/qnt/execute/displaySetup?newslD=5357 (touching on a few general criticisms of using star rating to rate nursing homes); Vive-Star Rating Report Shows Nursing Home Quality on the Upswing, McKnight's (July 1, 2013), http://www.mcknights.com/five-star-rating-report-shows-nursing-home-quality-on-theupswing/article/301102/ (discussing improvement in the MSR between 2009 and 2011); Kevin Kolus, Revising the Vive-Star Quality Rating System: What Stays, What Goes?, LONG Term Living MAG. (Feb. 23, 2012), http://www.ltlmagazine.com/article/revising-five-star-quality-ratingsystem-what-stays-what- goes (explaining changes and suggested changes in overall star ranking system).
(84) See CMS Announces Changes to Vive-Star Quality Rating System for Nursing Homes, supra note 83 (highlighting which measures relied on self-reported data).
(85) See Quality Measures, supra note 75 (explaining quality measures come from resident assessment data collected from residents during their stay at facilities). See also Design for Nursing Home Compare Vive-Star Quality Rating System: Technical User's Guide, supra note 75 (describing scoring rules).
(86) See Press Release: CMS Announces Two Medicare Quality Improvement Initiatives, CMS.GOV (Oct. 6, 2014), http://www.cms.gov/Newsroom/MediaReleaseDatabase/Press-releases/2014-Press releases-items/2014-10-06.html (explaining self-reporting by nursing homes is component of overall star rating); Press Release: CMS's Vive Star Quality Rating System for Nursing Homes, CMS.GOV (Oct. 6, 2014), available at http://www.cms.gov/Newsroom/MediaReleaseDatabase/Fact-sheets/2014-Fact-sheetsitems/2014-10-06.html (indicating "[s]taffing [l]evels" measure is based entirely on self-reported data, stressing these data are more subjective).
(87) See Press Release, CMS's Vive Star Quality Rating System for Nursing Homes, supra note 86 (proposing changes to include verifying staffing and other self-reported data). In 2008, CMS produced a questions and answers guide to improve Nursing Home Compare. Id. Improving the Nursing Compare Web Site, The Vive-Star Nursing Home Quality Rating System, CMS.GOV (Dec. 18, 2008), http://www.cms.gov/Medicare/Provider-Enrollment-and Certification/CertificationandComplianc/downloads/QsandAsFinal.pdf (noting complaints by nursing homes about being penalized for lower staffing levels). This guide describes the measures and their sources. Id. at 1. It specifically considered the likelihood of nursing homes "cheating" through their self-reporting to get higher star ratings. Id. at 19-20. Though it considered linking self-reported staffing levels with more reliable data such as payroll records, this was still a proposed modification in 2014. Id. at 20.
(88) See generally Intake Process, CMS.GOV, https://www.cms.gov/Regulations- andGuidance/Guidance/Manuals/downloads/som107c05.pdf (last visited Nov. 29, 2015) (outlining nursing home complaint procedure). How Nursing Facilities Are Funded, Health 1 CARI: ASS'N OF Michigan, 17-19, available at http://www.hcam.org/uploads/ckeditor/files/III_%20How%20Nursing%20Facilities%20are% 20Funded(1).pdf (last visited Oct. 26, 2015) (describing various public and private funding sources from programs and insurance). See also Jeff Kelley Lowenstein, Poorly Rated Nursing Homes Got HUD Guaranteed Mortgages Anyway, Ctr. for Pub. Integrity (Feb. 13, 2015, 2:50 PM), http://www.publicintegrity.org/2014/11/13/16265/poorly-rated-nursing-homes-got-hudguaranteed-mortgages-anyway (explaining that the low ratings rarely impact a facility's funding and profit making ability).
(90) Charles Ornstein & Lena Groeger, Nursing Home Inspect, bind Nursing Home Problems in V our State, ProPublica, http://projects.propublica.org/nursing-homes/ (last visited Feb. 24, 2015) (listing data on CMS inspections and fines within the past three years).
(91) Id. See also Freedom of Information Act (VOIA) Service Center, CMS.GOV, http://www.cms.gov/center/freedom-of-information-act-center.html (last updated Feb. 5, 2015) (providing information about FOIA requests for Nursing Home Compare). CMS also makes available other online comparative tools (providing links for to compare hospital and nursing care facilities and services).
(92) See supra note 90 and accompanying text (listing information provided on Nursing Home Inspect). The database also provides search tips, background information, and explicitly states that it is based largely on the Nursing Home Compare tool. See Charles Ornstein, Tipsheet: How to Use Nursing Home Inspect, ProPublica (Aug. 14, 2012), http://www.propublica.org/article/how-to-searchnursing-home-inspect (providing Nursing Home Inspect background, search advice, and warnings).
(93) Id. (warning that citations aren't necessarily quality indicators).
(95) See supra note 9 and accompanying text (explaining how to access Nursing Home Compare)', supra note 90 and accompanying text (detailing how to access Nursing Home Inspect). Comparing the Nursing Home Inspect Rosewood profile to Nursing Home Compare's profile provides a different perspective. Id.
(96) Hearing by an Administrative Law judge (ALJ), CMS.gov, http://www.cms.gov/Medicare/Appeals-and-Grievances/MMCAG/ALJ.html (last modified Oct. 5, 2014), (detailing the steps in the federal ALJ hearing process).
(97) See Leandra Lederman, Equity and the Article I Court: Is the Tax Court's Exercise of Equitable Towers Constitutional?, 5 Fla. Tax Rev. 357, 359-360 (2001). Article III courts are those specifically enacted under the Constitution's Article III and include the Supreme Court of the United States and the various federal courts throughout America. Id. at 360. Article I courts are special administrative type courts created by Congress. Id. at 359. There are various Article I courts, which each serving some unique specialized function in a certain area of law. Id. at 360. Article I courts exist for federal taxation, territorial governance, veterans appeals, Medicare and Medicaid claims, and for various other administrative needs. See id. at 362. Decisions by Article 1 judges, also referred to as administrative law judges ("ALJ"), are appealable to Article III courts. See id. at 363.
(98) See Anna Gorman, Waiting and Waiting on the Nursing Home Inspector, KAISER Health NEWS (Apr. 14, 2014), http://kaiserhealthnews.org/news/waiting-on-the-nursing-home-inspector/ (describing a 2011 elder abuse investigation still ongoing in 2014 despite end of mandatory arbitration ); Eleanor Laise, Courts Off Urn its to Nursing Home Residents, Kiplinger (Jan. 25, 2012), http://www.kiplinger.eom/artide/retirement/T027-C000-S001-courts-off-limits-to-nursinghome-residents.html (detailing increase in clients who are forced to sign binding arbitration agreements before being admitted); Special Study on Arbitration in the Long Term Care Industry, The Am. Health Care: Ass'n (June 16, 2009), http://www.ahcancal.org/research_data/liability/Documents/2009%20Special%20Study%20on %20Arbitration%20in%20Long%20Term%20Care.pdf (finding arbitration agreements are prevalent in long-term healthcare). See generally, Legal Issues Newsletter, Arbitration Clauses in Nursing Home Contracts, Fleming & Curti, PLC (Aug. 5, 2013), http://issues.flemingandcurti.com/2013/08/04/arbitration-clauses-in-nursing-home-contracts/ (describing how arbitration clauses affect recovery in elder abuse cases against nursing homes).
(99) See Gorman, supra note 98 (highlighting how local and state departments are overwhelmed and understaffed with elder abuse complaints).
(101) See Dep't of Health & Human Servs, Improvements are Needed at the Administrative Law Judge Levee of Medicare Appeals 1-3 (Nov. 2012), available at http://oig.hhs.gov/oei/reports/oei-02-10-00340.pdf (discussing the levels of appeal).
(102) See Appeals Process by Medicare Type, HHS.GOV, http://www.hhs.gov/omha/process/Appeals%20Process%20by%20Medicare%20rype/appeals _process.html (last visited Jan. 26, 2015explaining each level of the appellate process and highlighting challenges for elders issuing abuse claims).
(103) See Decision, American Healthcare Mgmt. v. Inspector General, DAB CR1278 (Feb. 18, 2005) (C-04-466), 2005 WL 437506 at *5 (finding that failure to report patient neglect provides reason to exclude petitioner from Medicare program).
(104) Appeals Process by Medicare Type, supra note 102 (discussing appellate process). Initially, the case brought before a CMS Medicare Administrative Contractor for review, whose decision may be appealed to two Qualified Independent Contract. Id. at 1. The decision may then be appealed to the ALJ, then before the Medicare Appeals Council. Id. at 2. After that, the case may be brought in District Court. Id.
(105) See Appeals Process by Medicare Type, supra note 102 (illustrating the available appeals process by Medicare coverage type). The type of appeal a consumer experiences can vary depending on his or her coverage type, but there is still a five level progression to judicial review by a federal court. See e.g., Ctrs. for Medicare. and Medicaid Servs., Medicare Appeals 9, http://www.medicare.gov/Pubs/pdf/11525.pdf (detailing overall appeals process and what consumers should expect).
(106) See generally Final Decision on Review of Administrative Law Judge Decision, Columbus Park Nursing and Rehabilitation Center v. CMS, DAB No. 2316 (May 7, 2010No. A-10-41), 2010 WL 2152846 at *2 (fining Columbus Park because of its complicity in elder abuse and supporting a negative rating). This appeals process may only be accessed by alleging some wrongdoing under the fee-for-services paid for by Medicare. See also Original Medical (Tee-for-Service) Appeals, CMS.GOV, https://www.cms.gov/Medicare/Appeals-andGrievances/OrgMedFFSAppeals/index.html (last visited Oct. 20, 2015).
(107) See Dep't of Health & Human Servs, supra note 101, at 1 (describing the role of Qualified Independent Contractors "QICs").
(109) First Level of Appeal: Redetermination by a Medicare Contractor, CMS.GOV, https://www.cms.gov/Medicare/Appeals-and Grievances/OrgMedFFSAppeals/RedeterminationbyaMedicareContractor.html (last visited Oct. 20, 2015 describing claim determination timelines).
(111) Appointment of Representative, CMS.gov, https://www.cms.gov/Medicare/CMS- Forms/CMSForms/Downloads/CMS1696.pdf (last visited Oct. 20, 2015 describing the appointment process under Medicare).
(112) See Dep't. of Health & Human Servs, supra note 101, at 2 (referring to appeals of administrative records such as claims, medical records, and other evidence). QICs are contracted from outside companies and assigned to an appeal based on the basis of the appeal and the location of the treatment giving rise to the complaint. See QIC Part A Cast Project, CMS.GOV, https://www.cms.gov/Medicare/Appeals-and Grievances/OrgMedFFSAppeals/Downloads/QIC-Maps.zip (last visited Oct. 20, 2015) (providing information about the companies contracted by CMS to acts as QICs).
(113) Second Level of Appeal: Reconsideration by a Qualified Independent Contractor, CMS.gov, https://www.cms.gov/Medicare/Appeals-and Grievances/OrgMedFFSAppeals/ReconsiderationbyaQualifiedIndependentContractor.html (last visited Oct. 20, 2015detailing the appeals process).
(115) Third Level of Appeal: Hearing by an Administrative Law judge, CMS.gov, https://www.cms.gov/Medicare/Appeals-and Grievances/OrgMedFFSAppeals/HearingsALJ.html (last visited Oct. 20, 2015detailing the appeals process).
(117) Id. Office of Medicare Hearing and Appeals (OHMA) administers the hearings and decision of ALJs. See Office of Medical Hearing and Appeals (OHMA), HHS.gov, http://www.hhs.gov/omha/ (last visited Oct. 20, 2015) (describing the role of the OHMA).
(118) See generally Medicare Parts A & B Appeals Process, CMS.gov, 1 (Aug. 2014), http://www.cms.gov/Outreach-and-Education/Medicare-Learning- NetworkMLN/MLNProducts/downloads/MedicareAppealsprocess.pdf (providing an overview of the Medicare Appeals Process). See also Decisions Search, HHS.gov, http://www.hhs.gov/dab/decisions/ (last visited Nov. 28, 2015) (providing all the Board and ALJ decisions). See also Dep't of Health & Human Servs, supra note 101, at 17. In practice, however, ALJs' caseload consists primarily of cases brought by providers, since the main purpose of appealing to the ALJ level is to ensure that the Department of Health and Human Services is not able to manipulate the system and refuse legitimate claims. Id.
(121) Id. See also Medicare Operations Division, HHS.gov, http://www.hhs.gov/dab/divisions/medicarcoperations/index.html (last visited Nov. 1, 2015) (providing information about staffing, fees and regulations of ALJ hearings or MAC appeals).
(122) Original Medical (Fee-for-Service) Appeals, supra note 106.
(123) See Fifth Level of Appeal: judicial Review in Federal District Court, CMS.GOV, https://www.cms.gov/Medicare/Appeals-and-Grievances/OrgMedFFSAppeals/ReviewFederal-District-Court.html (last visited Oct. 5, 2014) (detailing the monetary requirement of the appeals process).
(124) Steven G. Mehta, Respecting Our Elders, 23 L.A. Law. 35, 35 (2000) (providing general overview of elder abuse civil litigation). Unlike care providers, abused elders and their families do not need to go through an arduous appeals process. Id. at 38. Additionally, the states and the CMS regulations provide different definitions of elder abuse, which can create confusion that ultimately dissuades potential plaintiffs. See Donna Schuyler & Bryan A. Liang, Reconceptualizing Elder Abuse: Treating the Disease of Senior Community Exclusion, 15 Annals Health L. 275, 278 (2006) (describing elder abuse as any "action inflicting 'unnecessary suffering, injury, pain, loss ... for the older adult").
(125) Beth Davis, Mandatory Arbitration Agreements in Long-Term Care Contracts: How to Protect the Rights of Seniors in Washington, 35 Seattle U. L. Rev. 213, 214 (2011) (discussing increased prevalence of arbitration agreements and how confidentiality of arbitration augments ignorance of the public). Mandatory arbitration agreements are binding, which foreclose any appellate options elders may have access to. Id. See also Kelly Bagby & Samantha Souza, Finding Unfair Arbitration: Fighting Against the Enforcement of Arbitration Agreements in Long-Term Care Contracts, 29 J. Contemp. Health L. & Pol'y 183, 191 n. 29 (2013) (explaining that such arbitration clauses are often boilerplate and go unenforced by courts).
(126) Davis, supra note 125, at 219 (comparing and contrasting the full judicial process with a jury and trial to arbitrations). Cf. Woodall v. Avalon Care Ctr. Fed. Way, LLC, 155 Wash. App. 919, 935 (Wash. Ct. App. 2010) (finding that elder's heirs were not bound by elder's arbitrations agreement with retirement home). Nor does this mean that arbitration does not have favorable outcomes for elders and their estates. Id. In fact, arbitrators may award significant damages and impose severe penalties on facilities that they find have violated their fiduciary duties and statutory requirements. See Bagby & Souza, supra note 125, at 197 (discussing various damage awards crafted during arbitration).
(127) See Bush v. Horizon West, 205 Cal. App. 4th 924, 930 (Cal. Ct. App. 2012) (finding that retirement home can enforce arbitration when elder brings a claim against it). See also The Fairness in the Nursing Home Arbitration Act: joint Hearing Before the Subcommittee on Antitrust, Competition Policy and Consumer Rights of the Committee on the judiciary and Special Committee on Aging, 110th Cong. 3-4 (2008) (statement of Sen. Mel Martinez) (arguing elders should not have to arbitrate nursing home claims "as a condition of admittance").
(128) See Andrew Jay McClurg, Preying on the Graying: A Statutory Presumption to Prosecute Elder Financial Exploitation, 65 Hastings L.J. 1099, 1102 (2014) (explaining importance of a zealous and determined prosecutor to recover against elder exploitation).
(129) See supra note 99 and accompanying text (discussing how there are unique challenges to cases involving elders).
(130) See supra note 98 and accompanying text (describing current challenges to Nursing Home Compare).
(131) See generally 15 Questions & Answers About Elder Abuse, Nat'l Centkron Elder Abuse, 8-9, http://www.ncea.aoa.gov/Resources/Publication/docs/FINAL%206-06-05%203-18-0512-10 04qa.pdf (last visited Oct. 31, 2015) (describing state laws against elder abuse).
(132) Id. See also Gerald J. Jogerst et al., Domestic Elder Abuse and the Law, 93 Am. J OF PUB. HEALTH, 2131, 2131 (2003), available at http://www.ncbi.nlm.mh.gov/pmc/articles/PMC1448164/pdf/0932131.pdf (explaining that states enact prohibitive legislation because elder abuse is social and public health problem).
(133) See generally Alicia Freese, Advocates Say State Isn't Doing Enough To Investigate Elder Abuse, Vtdgger.org, (Feb. 1, 2013, 6:19 PM), http://vtdigger.org/2013/02/01/advocates-say-stateisnt-doing-enough-to- investigate-elder-abuse/ (critiquing Vermont state agency because only 106 of 1,358 elder abuse investigations were substantiated). In Vermont, Adult Protection Services failed to investigate some claims for over eight days though state law requires an investigation begin within 48 hours. Id. Even if complaints are received, they may not be processed immediately. Id.
(134) See generally supra note 104 and accompanying text (explaining that facilities are excluded from federal health care programs for period of five years).
(135) See Madow, supra note 27, at 620-21 (describing the "maze" of the legal system). In addition to complexity, the stress and time commitment required to litigate may only exacerbate an elder's "health, cognitive, or emotional issues." Id. at 621.
(136) Id. While legalese and minutia may deter legal professionals from reporting, the fact that many elder abusers are relatives or beloved friends of the victim also contributes to the challenge of getting a case to the litigation stage. Id.
(137) See supra notes 97-98, 100 and accompanying text (describing requisite administrative adjudication and heavy backlogs at the state level).
(138) See Before Nursing Home Compare, supra note 33 (describing the impact the proposed legislation could achieve).
(139) Id. (suggesting that the use of star ratings has transformed how long term health care is accessed). See generally Vive Star Hating System for Shilled Nursing Homes, supra note 64 (endorsing the Five Star Rating System).
(140) See Lowenstein, supra note 88 (describing MSRs and questioning their use in facilitating business, such as through loans). See How Nursing Facilities Are Funded, supra note 88 (recounting the historical perspective on funding of nursing homes).
(141) See supra notes 2, 4, 9, 13 and accompanying text (discussing general framework and interface of Nursing Home Compare).
(142) See supra notes 12-14 and accompanying text (describing the prevalence of the star ratings and their important in selecting nursing home.)
(143) See supra notes 9-12 and accompanying text (describing consumers expectations based on higher star ratings).
(144) See supra note 9 and accompanying text (laying out current legislation that would facilitate integration of state and federal elder abuse data). See also supra notes 11-12 (explaining how nursing home shortcomings affect elders, their families, and society).
(145) See supra notes 26-27 and accompanying text (describing elder abuse research and encouraging use of the judicial system to fight elder abuse).
(146) See supra note 26 and accompanying text (describing the EJA, its shortcomings, and how legislative changes have improved it).
(147) See supra note 32 and accompanying text (discussing changes in the law and the resulting improvements in healthcare and consumer information).
(148) See Laise, supra note 98 (explaining that mandatory arbitration is often required prior to admission). See also infra Part III.C (highlighting practical challenges that an elder and her family face when utilizing nursing homes).
(149) See supra Part III.C (highlighting practical challenges that an elder and her family face when utilizing nursing homes). See also Jogerst, supra note 132 (detailing how elder abuse is a public health concern that affects everyone).
(150) See supra notes 2, 3 and accompanying text (explaining how missing information from the Nursing Home Compare tool affected one elder at Rosewood).
(151) See generally infra Part IV.C. (comparing the effectiveness of the Nursing Home Compare and Nursing Home Inspect models).
(152) See Thomas, supra note 1 (discussing revisions for Nursing Home Compare).
(153) See generally supra notes 135, 139 (discussing barriers to litigation and the expense of elder abuse cases).
(154) See supra Part II.A and accompanying text (arguing that legislative changes could decrease the prevalence of elder abuse).
(155) See Colello, supra note 27 (providing a list of statutes that specifically address elder abuse). See also supra notes 34-37 and accompanying (detailing how IMPACT Act requires action by Congress in the development of Nursing Home Compare).
(156) See generally supra notes 13-19 and accompanying text (explaining that profits motivate nursing homes to engage in misrepresentation to get more stars).
(157) See supra note 90 (detailing how other online search tools are more robust in the information available and search ability).
(158) See supra notes 48-51 and accompanying text (describing how elder abuse penalties and regulations vary from state to state).
(159) See supra Part III.A and accompanying text (describing the importance of the data currently available on Nursing Home Compare).
(160) See supra note 11 and accompanying text (describing the Congressional intent of creating Nursing Home Compare). Nursing Home Compare discloses that state websites should be consulted and provides a list of contact information for each of the fifty states. See Nursing Home Compare, supra note 9.
(161) See supra notes 86-91 and accompanying text (discussing alternative nonprofit models for Nursing Home Compare). See also infra Part IV.C (describing other online comparison tools).
(162) See generally supra notes 51-52 and accompanying text (explaining that states have their own unique legal remedies and mechanisms to combat elder abuse).
(163) See generally supra note 45 (discussing the resources afforded to nursing homes and their unlikeliness to go through to trial). Such state level reporting would likely not be compulsory. Cf. supra note 10 and accompanying text (stating that nursing homes must be listed on Nursing Home Compare because of participation in the Medicare insurance program). However, as some states elect to participate, the public's awareness of the information available on Nursing Home Compare would be increased. See supra notes 86-95 (providing examples of how state deficiencies are made available).
(164) See supra note 13 and accompanying text (detailing missing information in Nursing Home Compare and important information that should be requested).
(165) See, e.g. Wrosch, supra note 15, at 18 (critiquing legislative proposals and congressional inaction).
(166) See supra note 46 and accompanying text (discussing potential exploitation of elders and their families when choosing a facility and signing an agreement).
(167) See supra Parts 11, III and accompanying text (describing benefits and costs related to the Nursing Home Compare online tool).
(168) See supra note 43 and accompanying text (explaining the harm mandatory arbitration clauses cause).
(169) See supra notes 43-44 and accompanying text (detailing how the arbitration process frustrates recovery from elder abuse).
(170) See supra note 78 and accompanying text (describing other online rating systems for companies and their services and products).
(171) See supra notes 9-12 and accompanying text (describing how the website falls short of expectations). See also supra note 38 and accompanying text (arguing that the star ratings suffer from not reflecting readily available state data).
(172) See supra notes 2-4 (explaining that Essie Chandler's family chose Rosewood specifically because of its star rating).
(173) See generally supra notes 34-37 and accompanying text (discussing the IMPACT Act).
(174) See supra notes 2-6 and accompanying text (detailing physical suffering elders endure resulting from a lack of verifiable deficiency information). See also Wrosch, supra note 15 (detailing how increase elder abuse awareness can prevent future instances of abuse).
(175) See Orenstein & Groeger, supra note 90 (discussing alternative ways to present nursing home information and deficiency reports).
(176) See supra notes 90-94 (illustrating how information is more widely available online through a variety of sources).
(177) See Hennessy-Fiske, supra note 3 (arguing that elders and their families want to be better informed about their healthcare).
(178) See Lieberman, supra note 63 (explaining the tension between nursing homes "gaming" the system and ACA's demand for transparency). See also supra note 65 and accompanying text (suggesting tool to use if additional nursing home information not available on website).
(179) See Gabrowski, supra note 66 (illustrating how the current federal-state relationship of elder abuse data can result in consumers obtaining no information at all).
(180) See supra note 65 and accompanying text (showing how one state makes deficiencies reports easily available online).
(181) See supra note 65 and accompanying text (showing how one state makes deficiencies reports easily available online).
(182) See generally Nursing Home Compare, supra note 9 (providing profile information for Rosewood Post Acute Rehabilitation). Some reports are generated using CMS materials suggesting that adopting a system like this would not be difficult since federal methods are being used in at least some states. See generally supra note 65 and accompany text (describing selected state approaches to nursing home care).
(183) See supra note 34 and accompanying text (describing the ACA's impact on Nursing Home Compare). ACA also provides a model for improving Nursing Home Compare. See also supra notes 29 (describing the star ratings and the Nursing Home Compare online tool interface).
(184) See, e.g., supra note 91 and accompanying text (describing how information about nursing homes can be obtained for little to no cost).
(185) See Quality Measures, supra note 85 (describing QMs in greater details).
(186) See generally supra note 90 (explaining that non-government entities can distribute nursing home data via the internet).
(187) See supra note 90 and accompanying text (detailing the intention of Nursing Home Inspect).
(188) See supra note 90 and accompanying text (detailing the intention of Nursing Home Inspect).
(189) See supra note 91 and accompanying text (noting that more detailed information is on Nursing Home Inspect compared to Nursing Home Compare).
(190) See generally supra Part III (explaining how MSRs are calculated and incorporated into the overall star rating).
(191) See supra note 90 and accompanying text (explaining the Nursing Home Inspects tool available online).
(192) See supra Part I (describing wrongful death suits and allegations of abuse and neglect against Rosewood Retirement Home).
(193) See supra notes 2-6 and accompanying text (describing the Chandler's experience at a hve star nursing home).
(194) See supra note 4 and accompanying text (detailing the deficiencies at Rosewood).
(195) See Thomas, supra note 1 (describing instances that occurred at Rosewood). See also Fire Star Quality Rating, supra note 2 (detailing the nursing tools available online).
(196) See Five Star Quality Rating, supra note 2 (detailing the nursing tools available online).
(197) See supra note 34 (describing the details of the IMPACT Act).
(198) See supra note 34 and accompanying text (describing the details of the IMPACT Act). See also CMS Announces Two Medicare Quality Improvement Initiatives, supra note 38. See also supra Part II.A (discussing need for the IMPACT Act and CMS goals for the online ratings system).
(199) See supra note 158 and accompanying text (describing the responsibilities of CMS with respect to nursing homes).
(200) See How to Tile a Complaint, supra note 67 (describing federal resources available to elders experiencing problems with products, services, and neglect). See also Gabrowski, supra note 66 (highlighting how an increase in awareness about elder abuse encourages people to do more research about nursing homes).
(201) See supra notes 34, 38 and accompanying text (showing the success of Nursing Home Five Star Quality Rating System and how some changes can improve it further).
(202) See supra note 38 and accompanying text (describing positive changes to online Medicare tools). See also supra notes 80-82 (discussing expansions leading to the development of several online comparative tools).
(203) See Mollot, supra note 81, at 5-6 (explaining how regulations can protect nursing home residents).
(204) See supra Part III (describing the evolution of how people use online information to inform their financial and health decisions).
(205) See supra notes 180-183 and accompanying text (providing state health departments that share nursing home facilities' inspections online).
(206) See supra notes 34-38 and accompanying text (providing an overview of the Nursing Home Compare online tool and its goals as demonstrated by the IMPACT Act). See also supra note 13 (discussing Bryn Mawr Care, Inc.); supra notes 92-93 and accompanying text (discussing the availability of information used to populate the Nursing Home Inspect online tool); supra notes 99-103 and accompanying text (describing how most elder abuse cases are currently handled); supra Part III.B (discussing self-reporting).
(207) See supra notes 42-46 and accompanying text (describing reasonable legislative and regulator)' changes that can improve the ratings system). See also supra Part II.A (describing how elders are harmed by market schemes of the online rating system and litigation).
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|Publication:||Journal of Health & Biomedical Law|
|Date:||Jan 1, 2016|
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