Federal Penalties Coming to Middle South Nursing Homes for Care Failures

New Orleans       There are few lobbies as powerful as the nursing home owners’ groups in Louisiana, Arkansas, and Mississippi.  All of which makes the intervention of federal rules extending some of the same accountability standards that hospitals now face, welcome news.  The fact that the penalties go right to their pocketbooks is even better news.

Here’s the deal on the new rules hitting nursing homes across the country now.  Penalties – or incentives for those doing better – will be meted out to nursing homes based on the frequency of readmission of elderly Medicare patients that are returned to hospitals within thirty days of leaving a skilled nursing home.  The financial penalty can reach up to 2% of the individual Medicare reimbursement rate per patient.  Hospitals already have to measure up to this standard and in recent months nursing homes came under the same regime.

Will this affect many homes?  Yes, indeed!

Kaiser Health News reported an analysis of homes in Louisiana and found that 85% of the 277 skilled nursing facilities in the state would be subject to a penalty based on data from 2015 through 2017.  Not that Louisiana was by itself since the figures for nursing homes in Arkansas and Mississippi was almost exactly the same.  Bottom line:  the vast majority of nursing homes in the three-state area are facing penalties.  The Advocate reports that in New Orleans for example, a dozen facilities will face a penalty and only two will receive small bonuses for doing right.  These are not just problems with for-profit providers.  The three homes overseen by the Catholic Archdiocese of New Orleans will each receive almost the maximum penalty for each new admission at 1.98% of the possible 2%.

The question of how nursing homes can provide better care to patients, often elderly, sick, and frail, is a constant concern for families and appropriately for public policy.  Reading the comments from administrators of homes that got the good grades under the new rule, they cite getting more thorough information from the hospitals about incoming and prospective patients is key as well as offering preventive care on site.

All of that sounds right, but given the long experience that Local 100, United Labor Unions, has had in representing nursing home workers and observing care conditions firsthand, it will be difficult to fundamentally improve care until staffing levels are adequate to the significant health demands of patients as a first priority.  Being able to retain professional caregivers also means compensating workers commensurate to the value of the service they provide to families and patients.  In the thirty or more years that we have been involved with nursing homes we still see a conflict faced by many home owners and operators between seeing the facilities as real estate developments with a sideline in healthcare as opposed to healthcare facilities that happen to be built on real estate.

We’ve got a long way to go still, but hopefully the application of this new rule will bring some change now that owners will feel the pain of nonperformance in dollars and cents.

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Vote “Yes” for Unanimous Juries in Louisiana

New Orleans        Louisiana is one of only two states in the US that allow split-verdict decisions by juries.  The other is Oregon.  What this means, simply put, is that being “guilty beyond a reasonable doubt” does not exist for a conviction in these two states.  In every other state the entire jury has to be convinced of guilt.  In Louisiana and Oregon in felony cases only ten of twelve jurors have to agree.  The other two can have huge doubts and be unmoved by the majority, but the majority can send someone to their death, to life in prison, or whatever the judge might order.

There’s finally a ballot measure put on the ballot by the legislature, because they didn’t have the backbone to do the job of ending this injustice themselves.  If passed, the measure would end this practice dating back to the horror of the backlash in the South that pushed back, successfully, against post-Civil War Reconstruction.  The history of the split-verdict makes it impossible to ignore racism in full force and flower.  The law was originally passed in 1898.  Contemporary editorials at the time were clear about the climate, warning that allowing blacks on juries would give them a voice and a vote in jury deliberations, supposedly allowing criminals to go free.  Of course, ignoring the fact that disenfranchising African-Americans in the Jim Crow era also meant that the norm was more often all-white juries chosen from the registered voter pool in Louisiana which was stacked against allowing black voters, and embedded systemic racism in every jury decision.

A recent ruling in the 11th District Court in one small, largely rural area, Sabine Parish, found a judge finding the law unconstitutional because three African-Americans were excluded from the jury pool because of race leading to an 11-1 guilty verdict being appealed to his court.  Unfortunately, that decision only applies in Sabine Parish.  A Louisiana paper, The Advocate, had also done an analysis of jury trials throughout the state for a recent six-year period and found a hugely significant difference in the impact on black jurors and black defendants.  In almost 1000 convictions where the jury vote count was available, blacks were 30% more often convicted than white defendants by split-verdict juries.

The odds to get rid of this stain on the state look pretty good, but looks and voting are two different matters in this scarlet red state.  The Republican Attorney General Landry wants to keep the split-verdict decisions as do some prosecuting attorneys in the state who depend on their body count for re-election and their tough-on-crime branding.  The Governor, the states editorial writers, and the majority of political voices from both parties all favor Voting “Yes” on Amendment 2 and implementing unanimous jury decisions.

The problem is of course race or rather racism.  A mailer we received this week calling for VOTE YES ON 2 for Freedom and Fairness in an obviously deliberate choice featured six pictures of a white-haired white family and a blond family of four, also whiter than white.  Some campaigners must feel it’s better to whitewash this issue that remind people that a VOTE YES ON 2 erases part of the vestige of racist history in Louisiana.

One step at a time it seems, but either way, there are signs at our office and in front of our homes and everywhere we can put them.  It’s past time to VOTE YES ON 2, and join the rest of the country in requiring unanimous jury verdicts in felony trials.

Come on up, Oregon.

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