April 16, 2015

Attorney General Schneiderman Cracks Down on Medicaid Fraud

The New York State Office of the Attorney General is responsible for investigating and prosecuting a vast quantity of crimes in the state of New York. While many of the more widely publicized investigations involve drug distribution and conspiracies, Medicaid fraud has become a growing trend in the state of New York, and Attorney General Schneiderman has been doubling down on Medicaid fraud in the recent years.

The Office of the Attorney General now has a Medicaid Fraud Control Unit dedicated to detecting Medicaid fraud at doctor's offices, nursing homes, hospitals, non-profits, and more. State and federal taxpayer dollars fund New York's Medicaid program, thus fraudulent use of Medicaid funds wastes taxpayer money. In addition, it diverts much-needed funding from worthy programs and patients.

RAIN, or Regional Aid for Interim Needs, is a non-profit designed to provide services to the vulnerable elderly population. These services include home attendants, senior centers, Meals-on-Wheels, social services, and senior housing complexes. These services are funded in part by state Medicaid dollars. Beginning in 2003, RAIN's former Executive Director, Louis Vasquez, dipped into the Medicaid pot and diverted Medicaid funds from financing healthcare services for elderly residents in the Bronx to paying over $800,000 in mortgage payments for an empty building.

While Medicaid funds are commonly awarded to non-profits that qualify for them, these funds include limitations on their use. Non-profits enter into agreements with the NYC Human Resources Division. These agreements restrict the Medicaid funds to only covering services designed to help the elderly. Incidental expenses such as mortgages, office supplies, or employee paychecks cannot be paid for using Medicaid funds.

From 2003 to 2008, former Executive Director Vasquez used these Medicaid funds to pay the mortgage. In addition, Vasquez also used RAIN's corporate American Express credit card to charge thousands of dollars' worth of personal expenses. The Medicaid Fraud Control Unit, in conjunction with the New York City Department of Investigation, conducted an investigation into the fraud. RAIN agreed to settle with the state to avoid additional liability. RAIN agreed to pay back the entire $800,000 that was diverted from elderly services to mortgage payments. RAIN also agreed to implement internal controls and governance reforms to prevent reoccurrences in the future. Most importantly, RAIN agreed to change the members of the Board of Directors. Thus, on September 30, 2013, Vasquez was forced to resign. Vasquez is required under the settlement to pay back in full the American Express charges.

RAIN is a well-known and trusted non-profit in the Bronx community, and many elderly residents rely on the non-profit for much-needed services. These services are pertinent for the elderly residents' welfare. Some residents require around-the-clock care or frequent visits by home health aide nurses. Others utilize Medicaid benefits to supply elderly friendly housing. RAIN provides invaluable services to the elderly community, and when RAIN's funding is diverted to other areas such as paying mortgages, the elderly residents suffer.

Elderly residents are especially vulnerable because many rely on the benefits conferred by state Medicaid programs to get necessary medications, receive treatment, and obtain accessible housing. Sadly, Medicaid fraud is not a rarity. While whistleblower statutes have increased the prevalence of reporting, the Medicaid Fraud Control Unit at the Office of the Attorney General is growing increasingly busy with investigations.

In fact, while this case involved misappropriated funds, there are a plethora of other forms of Medicaid fraud. Common forms include: (1) billing for services that were never provided, (2) billing both Medicaid and private insurance, (3) billing for visits that never occurred, (4) billing for more time than was spent with the patient, (5) misrepresenting qualifications of health care professionals, (6) billing for name-brand drugs when generics were supplied, (7) billing for unnecessary tests or equipment, (8) billing for more tests or more comprehensive tests than were actually administered, (9) providing kickbacks to other healthcare partners, and (10) including costs for personal items in Medicaid reports.

If you suspect your health care provider, nursing home, non-profit service provider or pharmacist is violating the law and defrauding you, don't sit idle. Contact the New York Medicaid fraud expert lawyers at Gallivan & Gallivan today or make a complaint directly to the New York State Office of the Attorney General.

A.G. Schneiderman Announces $800,000 Settlement with Bronx Nonprofit that Diverted Money Intended for Services for Elderly

April 16, 2015

New York Disability Nonprofit to Repay $363,000 due to Medicaid Fraud

New York's state Medicaid system is designed to provide health care-related services to some of New York's most vulnerable populations. One such population is people with developmental disabilities. The Office for People with Developmental Disabilities is tasked with coordinating services either directly or through a network of Medicaid-funded nonprofits. Over 700 nonprofits currently exist in New York to serve those with developmental disabilities, and these 700 nonprofits provide approximately 80% of all services.

elderly woman.jpgDevelopmental disabilities include intellectual disabilities, cerebral palsy, Down syndrome, autism, and other disabilities. This vulnerable population relies on Medicaid-funded services, which include long-term care services, habilitation, clinical services, residential support and services, residential schools, institutions, and developmental centers. In addition, the Office for People with Developmental Disabilities provides support to families to educate them on and assist them with caring for loved ones who have developmental disabilities.

While many individuals with developmental disabilities have a strong family support system to help care for them and provide much-needed services, many individuals also rely on the care and services of non-profits funded by Medicaid under the Office for People with Developmental Disabilities. One such nonprofit is Fishkill-based Keli House Community Services.

Keli House strives to provide services to people with developmental disabilities and their families in order to decrease institutionalization rates. These services include assessing the person's needs and then connecting them with invaluable programs. Despite its noble goal, Keli House was accused by the New York State Office of the Attorney General with violating its mission and violating Medicaid restrictions by hiring unqualified employees.

As an aside, in order to maximize the help it can provide these vulnerable residents and their families, the Office for People with Developmental Disabilities has put in place strict rules that govern all of the 700 nonprofits that provide services under its umbrella using Medicaid funds. One such rule is that all individuals who are employed by the nonprofit in coordinating services for the population must meet strict qualification standards regarding education and experience. The Office requires that each coordinator have at least an associate's degree in health or human services and either one year of experience working with persons with developmental disabilities or one year of experience with service coordination. Finally, all service coordinators must complete a rigorous training program that has been vetted by the Office.

In violation of the rule, Keli House employed 10 service coordinators, 9 of whom were unqualified. While some of the coordinators had absolutely no prior experience, others held degrees in unrelated fields. The Medicaid Fraud Control Unit, in conjunction with the Justice Center for the Protection of Persons with Special Needs, conducted the investigation into Keli House. In response to the allegations, Keli House agreed to settle for $363,643.

While Medicaid fraud is one such way that individuals with developmental disabilities are targeted, a more direct form of harm is through caretaker abuse. Persons with developmental disabilities are especially vulnerable to abuse because many of them are unable to comprehend or understand the situation. In addition, many of them are powerless to fight against the abuse. Abuse may occur in institutionalized settings or even in special education classes or in the home. Common signs of abuse include withdrawn or antisocial behavior, depression, fear, unexplained anger, avoidance behaviors, regression, signs of physical trauma such as bruises, and any inappropriate behavior or conversations between the patient and their caretaker.

Unfortunately, abuse is rampant in the developmental disability community, and it is imperative to catch the abuse early to stop it. Report any suspected abuse or Medicaid fraud to the Office for People with Developmental Disabilities. Then call the experienced caretaker abuse lawyers at Gallivan & Gallivan today to discuss your potential claim.

April 16, 2015

Medicare.gov Revamps Ratings System for Nursing Homes

Medicare.gov's website has a useful tool titled Nursing Home Compare that helps individuals compare information about every Medicare and Medicaid-certified nursing home in the country. Nursing Home Compare includes detailed information about each nursing home, including types of skilled care provided (e.g. intravenous injections or physical therapy), any health and fire-safety inspection issues, staffing information and qualifications, any penalties assessed against the nursing home, and quality ratings.

While Nursing Home Compare and its quality ratings system is not new, Medicare.gov recently revamped its rating system to be more stringent. Prior to the revamp, there were a plethora of 5 star nursing homes in the state of New York. However, many individuals found that when they went to visit and tour these facilities, they were not deserving of their 5 star rating.

Medicare.gov now incorporates 2 quality measures for use of antipsychotics, requires a greater number of points to reach each star level, and uses a different scoring method for rating the staff. As such, many nursing homes dropped in star ratings. 28% of nursing homes nationwide dropped at least one star rating. In fact, 40% of Hudson Valley nursing homes dropped at least one star. These drops were not due to changes in the quality of the nursing home's care but rather the change in the ratings system. Prior to this revision, a whopping 70% of all nursing homes scored 4 or 5 stars, the top scores. Now, that figure hovers around 50%.

By working to counteract inflated ratings, Medicare.gov has produced a more useful and realistic ratings system. In addition, expectations regarding quality of care have changed. Elderly residents are now demanding upgraded facilities, rehab and physical therapy, concierge services, gymnasiums and swimming pools, more scenic locations, roomier accommodations, and state of the art equipment. While top doctors and nurses, as well as comprehensive medical care, are always in high demand at nursing homes, the trend has been an increased focused on ancillary services that set the nursing home apart from its competitors.

If you or a loved one are looking for a nursing home in the New York area, a variety of different tools exist aside from the Nursing Home Compare website to help you in evaluating different nursing homes. One such tool is lohud's map of nursing homes, found at http://data.lohud.com/maps/nynursinghomes/. The map shows every Medicare and Medicaid-funded nursing home in New York, color-coordinated by star rating. You can also color code the map based on number of stars assigned in various categories, such as health inspection, quality measures, and staffing rating. You can also color code the map based on whether anti-psychotic drugs are used against patients for both short and long-term stays.

Another helpful tool is George Coniglio's guide to evaluating nursing homes during visits. Coniglio is a nursing home ombudsman who evaluates nursing homes and investigates complaints. He advises that when touring a facility for the first time, check to see if the facility is clean and organized. He recommends observing staff interaction with patients. Does the staff seem hurried? Are they polite? Are they responding to patient requests? In addition, how are the staff when interacting with each other? Coniglio also recommends that individuals confront nursing home administrators about any black marks that appear in their ratings, such as penalties or health inspection failures. If you do finally decide on a nursing home, visit often. Not only does visiting often raise the spirits of your loved one in the nursing home, but it also raises the level of care. Nursing home staff know you are involved and paying attention and are therefore more likely to treat your loved one well. And if the nursing home is doing something wrong or you suspect abuse, don't be afraid to speak up!

If you or a loved one is being abused at a nursing home, don't hesitate to contact the New York nursing home expert attorneys today at Gallivan & Gallivan to review your potential claim.

April 16, 2015

Study Finds Signs of Alzheimer's in 20-Year-Old Patients

In a recent post, we examined a Mayo Clinic study linking a toxic protein in the brain to the development of Alzheimer's Disease. Though commonly associated with senior citizens, Alzheimer's is no longer just for the elderly. A study conducted by Northwestern University and reported on Yahoo! by Cassie Shortsleeve recently discovered that patients as young as 20 may begin exhibiting signs of early onset Alzheimer's.

Amyloid protein, a sticky, toxic protein that clumps in the brain and binds to neurons, inhibits neurons from performing their memory storage and retrieval functions. The prevalence of amyloid protein in the brain has long been suspected as being the root cause of Alzheimer's and dementia. The Northwestern University study found that amyloid begins clumping in brains of even "normal" young people.

The researchers dissected 50 brains as part of the study. Approximately one fourth belonged to healthy young people as young as 20, one third belonged to people over the age of 70 without dementia, and one quarter belonged to people over the age of 60 with Alzheimer's. The amyloid brain scans showed that amyloids began clumping in the brains of the healthy young people despite their age. While clumping was more prevalent in the brains of older Alzheimer's patients, this study revealed that the disease may begin early and progress very slowly before being detected by doctors.

The researchers hypothesize that neurons are susceptible to amyloid clumping at any age, and that while most of the more drastic clumping occurs in old age, the substance needed to form the clumps is present at any age, with the susceptibility to form clumps worsening over time. While there has been an increasing focus on Alzheimer's research as of late, science has not yet conquered the disease. Treatment options do exist to slow the progression or lesson the symptoms, but no cure is yet available.

In addition, while scientists may be able to determine what makes individuals more susceptible to Alzheimer's (such as a greater concentration of amyloids), scientists do not know how to prevent the onset of the disease. One of the biggest predictors of Alzheimer's is one's general health. Several other health issues such as diabetes, heart disease, obesity, and pulmonary disease go hand-in-hand with Alzheimer's.

The results of this study are shocking but helpful. Because amyloids are present in even young individuals, it is imperative to take care of yourself. Doctors recommend that people maintain a healthy, balanced diet that is rich in protein, fruits, and veggies with modest amounts of whole grains. Doctors also recommend a daily exercise routine. Research has shown that even walking has improved mental capacity. Doctors also recommend training the brain. Individuals who challenge themselves with puzzles, memory games, or analytical problem solving activate spheres of the brain, leading to a lower risk of developing Alzheimer's. Finally, doctors recommend that people think positively. Research has shown that negative thoughts actually impact neural function and cognitive organization.

Despite the ramifications of this study, Alzheimer's disease remains largely a dilemma for older persons, many of whom live in nursing homes. Alzheimer's sufferers are especially vulnerable to nursing home abuse because the cognitive issues caused by the disease may prevent them from either recognizing abuse or reporting it.

Nursing home abuse can take many formats. These include physical injuries, emotional trauma caused by verbal attacks, neglect, confinement, intentional or negligent financial abuse, sexual abuse, and intentional deprivation of necessities. Because an individual with Alzheimer's may be unable to detect or report abuse, it is important to recognize key signs of abuse. These include signs of physical injury such as bruises and cuts, depression, antisocial activity, unexplained loss of money, poor hygiene, bedsores and pressure ulcers, weight loss, signs of fear or paranoia, and arguments witnessed between the caregiver and patient.

Nursing home abuse can be hard to detect. Caregivers often spend large quantities of unsupervised time with the patient, during which they may be abusing the patient. However, when friends or family members are present, the caregiver appears nurturing and caring despite signs of abuse. It is not your job to investigate the abuse. If you suspect a loved one with Alzheimer's is being abused at a nursing home, contact the New York nursing home lawyers at Gallivan & Gallivan today, and we will investigate your claim for you.

April 15, 2015

Rockland Nonprofit Charged with Forging Medicaid Claims and Lying in Medicaid Audit

The nonprofit Mental Health Association of Rockland County, Inc. has agreed to settle with the New York State Office of the Attorney General for $304,000 in response to allegations that the nonprofit altered Medicaid records. In its settlement agreement, the nonprofit admitted to the allegations and accepted responsibility for its actions.

Medicaid is a state and federal taxpayer-sponsored program in the state of New York. Nonprofits that provide healthcare services to vulnerable and indigent populations such as those with mental health issues are eligible for funding from Medicaid. Medicaid funds can only be used to cover services and equipment associated with its mission. Ancillary costs and fees, such as rent or payroll, cannot be covered with Medicaid funds. Generally the facility will bill Medicaid directly for visits, treatment, procedures, services, and more. Medicaid then reimburses the facility.

Mental Health Association of Rockland County overcharged Medicaid for patient visits by inflating the number of hours that patients spent at the health center. In order to bill Medicaid for patient visits, the health center documented the number of hours spent in the Continuing Day Treatment Program, a mental health treatment program for adults, each day.

cash.jpgThe health center was able to continue this practice undetected until the Office of the Medicaid Inspector General initiated a routine audit in 2009 of the Continuing Day Treatment Program. The Inspector requested all records relating to this program, including records that logged the number of hours each patient spent in the program. In order to match the number of hours submitted to Medicaid for billing purposes with the number of hours logged in the records, the managers and employees began altering and falsifying records to inflate the number of hours reported in the log books. For instance, on some forms, days and hours were added; on other forms, the employees changed the number of hours logged. In all, over 40 changes were made to these records. After combing through the records and making handwritten changes, the health center then provided the revised notes to the auditors. The records encompassed years 2003 to 2008.

Despite the glaring discrepancies and alterations on the audit, it was not until two former health center employees reported the Medicaid fraud via a whistleblower lawsuit that the Office of the Medicaid Inspector General and the New York State Office of the Attorney General's Medicaid Fraud Control Unit began investigating the allegations. The Attorney General then found evidence that the health center had altered the records so that they would appear to support Medicaid claims submitted between 2003 and 2008.

The whistleblower statute in New York is known as the New York False Claims Act. Parties are liable under this statute when they present false or fraudulent claims, such as false Medicaid claims, to the state or local government. Private plaintiffs, known as whistleblowers, are able to file lawsuits under this act. Whistleblowers are usually current or former employees with inside information about the organization's practices. The offender must pay fines for each violation, as well as damages up to three times the amount of the actual harm. The whistleblower is rewarded for reporting the violations by receiving 15 to 25% of the damages if the Attorney General intervenes. If the Attorney General does not intervene, then the whistleblower can receive a whopping 25 to 30% of the recovery. In addition, this statute protects the whistleblowers from retaliation from current and former employers.

The underlying whistleblower case filed by ex-employees has been resolved as part of this settlement agreement. Mental Health Association of Rockland County is to pay $250,000 for the violations done under state and federal False Claims Acts. In addition, the health center is to pay $54,000 for failing to keep any notes, records, or treatment plans involving various Continuing Day Treatment Program participants who were funded by Medicaid.

If you or a loved one is being abused by a facility funded by Medicaid, you have options. You can report the suspected abuse to the New York State Office of the Attorney General. You can also call the New York Medicaid abuse lawyers at Gallivan & Gallivan today to discuss your potential claim.

April 14, 2015

Mayo Clinic Study Breakthrough: Alzheimer's Is Linked to Toxic Proteins in the Brain

A large scale Mayo Clinic study recently conducted produced shocking results - the toxic protein tau may be responsible for Alzheimer's and cognitive degeneration.

For the past several decades, neurologists and researchers have focused on amyloid, a toxic protein found in the brain that was thought to contribute to cognitive decline, the hallmark of Alzheimer's disease. However, in a groundbreaking new study, Mayo Clinic researchers have found that another toxic protein may be the true culprit.

The researchers surveyed over 3,000 brains of deceased individuals that had been donated to the Mayo Clinic. Approximately one third of these belonged to Alzheimer's patients, though these patients had died at different stages of the disease and at different ages. Using these brains, the researchers were able to map out key characteristics of Alzheimer's sufferers, as well as a timeline for cognitive degeneration.

Tau and amyloid proteins were both found in the brains of Alzheimer's sufferers. However, this long-range, large-scale study allowed the researchers to finally evaluate the impact of these proteins throughout the lifecycle of the disease. Using a scoring rubric for the two proteins, the researchers found that the prevalence of tau and not amyloid was the key predictor for Alzheimer's. Using the severity of tau, the researchers were able to map out the predicted age of onset of cognitive deterioration.

One shocking discovery of the study showed that amyloid can be present in vast quantities in brains of older individuals who do not have Alzheimer's or mental degeneration. This has led researchers to believe it is tau and not amyloid that is causing the memory decline prevalent in Alzheimer's patients. Tau appears to kill neurons while amyloid appears to cause neurons to miscommunicate. The researchers liken this to the sufferer's inability to save or store memories due to tau, whereas amyloid appears to only cause issues with retrieving memories that are in fact stored somewhere in the brain.

Despite the groundbreaking nature of the findings, the medical world is currently ill-equipped to treat issues caused by tau. In fact, the medical world does not currently have means of conducting tau brain scanning to detect prevalence of tau. While amyloid brain scanning has been popular in the medical community for a while, it is now imperative for the field to develop means of utilizing the findings of this study to detect tau in order to earlier diagnose and treat Alzheimer's.

elderly couple.jpgAlzheimer's is a deadly brain disease. Named after a German psychiatrist who first identified the disease in a patient in 1901, it is a form of dementia that destroys memory and cognitive function and accounts for up to 80% of dementia cases. Ten percent of the world's population over 65 is afflicted with Alzheimer's disease. Early onset Alzheimer's is usually not detected. The disease begins with mild forgetfulness or confusion, then progresses to an inability to remember old or even recent memories. Sufferers have difficulty organizing thoughts and recognizing once well-known people, places or things.

At this time, there is no cure for Alzheimer's, thus it is imperative that the disease is detected as early as possible and correctly diagnosed. Some medications may help ease the memory symptoms. In addition, doctors recommend memory drills, as well as a healthy diet with exercise.

Individuals with Alzheimer's are especially vulnerable. Therefore, it is important to ensure they are receiving proper diagnosis, care, and treatment. Alzheimer's patients may run into issues with misdiagnosis or ineffective treatment plans. In addition, due to their limited cognitive function in late-stage Alzheimer's, many sufferers are susceptible to abuse in nursing homes. These sufferers are especially defenseless to nursing home abuse because they either do not remember the abuse or cannot comprehend it when it occurs.

If you believe a loved one suffering with Alzheimer's disease is being abused by nursing home staff, please contact the experienced New York nursing home attorneys at Gallivan and Gallivan today to discuss your potential claim.

March 13, 2015

Department of Health Finds Actual Harm at Queens Nursing Home

A March, 2014 Certification Survey conducted by the Department of Health at Queens Nassau Rehabilitation and Nursing Center found that the facility failed to remain free of accident hazards. This failure resulted in actual harm for a resident of the facility.

The New York Administrative Code dictates that New York nursing homes must ensure that the resident environment remains as free of accident hazards as possible, and that each resident is adequately supervised to prevent accidents. The Department's findings at Queens Nassau centered on a resident who was admitted to the facility with several diagnoses that would affect his ability to make his own determinations regarding his well-being. The resident, among other factors, had a seizure disorder, Stage IV pressure ulcer of the hip, and dementia. Queens Nassau recognized that the resident's behavior placed him at risk for physical injury, and that he was entirely dependent on the staff of the nursing home for almost all activities of daily living.

In late October, 2013, a CNA on staff at the home entered found the resident's leg stuck in a gap between his bed and the side rail that the facility had implemented. Several days later, after showering the resident, staff noticed swelling and tenderness to the man's right thigh. He was taken to the hospital and examined. Following an x-ray, it was discovered that the man had suffered an Acute Comminuted Spiral Fracture of the Midshaft right Femur (a broken leg).

As is the case in most, if not all of these DOH surveys, investigators interviewed numerous relevant parties at the facility to determine the circumstances surrounding the resident's injury. The CNA who had been on duty on the night that the resident broke his leg told investigators that she remembered the specific incident, but that it was not out of the ordinary for that particular resident to become stuck in the side rail. Other staff members reiterated that the resident was very active while in bed, often thrashing about and toying with the side rails.

From his diagnoses, it would appear that this resident was an accident risk, particularly due to his restlessness in bed. It is the duty of the facility to ensure that such residents' environments remain as free of accident hazards as possible. It would also appear that the nursing home failed in that regard with respect to this patient.

The full DOH report can be found here.

March 12, 2015

Criminal Charges Result from Bronx Nursing Home Death

CBS News brings us this disturbing story from a Bronx County nursing home:

An aide at a Bronx nursing home is facing charges in connection with the death of a 77-year-old patient.

According to law enforcement sources, the fight that broke out between the aide and the victim was so intense that witnesses told police they had to pull the two apart, 1010 WINS' Sonia Rincon reported.

Police said during the altercation Frank Mercado fell onto a broken table in the room, and a piece of metal impaled him. He was rushed to Montefiore Hospital, where he succumbed to his injuries hours later.

The aide, Cherrylee Young, had been employed by the facility for 14 years. She has been arrested and charged with criminally negligent homicide, felony assault, and endangering the welfare of an adult. Last month, Young pleaded not guilty on all charges.

Yes, actual, violent death is perhaps an extreme example of nursing home danger. But as the New York Times points out in an extensive piece on Mr. Mercado's death, New York nursing homes in particular suffer from dangerously high rates of abuse and neglect. The trend is sadly toward less, not more oversight, and private companies have been on a buying spree, taking over not-for-profit care facilities and slashing staff and services to increase profits. If the trend continues, we shouldn't be surprised to see more tragedies like the one that befell Mr. Mercado.

The nursing home in this case was just such a private, for-profit operator: University Nursing Home, owned and operated by the elder care giant Centers Health Care. University Nursing Home has declined to comment on the death beyond touting their so-called high government ratings, and claiming to be cooperating with the police investigation. The Times article highlights several other true horror stories of residents suffering severe injuries while in the "care" of University Nursing Home, and notes the high number of safety code violations, along with some truly disturbing statistics involving depression, weight loss, and psychotropic drug use of residents.

For those of us who practice in this area, it is difficult to understate the hellish conditions found at some elder care facilities in New York State. Typically, only when a "newsworthy" incident, such as a gruesome death, comes to the attention of the press do these facilities receive negative publicity. A similar case came to light this past September, after a group of home health care aides callously allowed an elderly man in their care to die after refusing treatment for broken bones resulting from a fall.

Documents unearthed by the Times have highlighted one of the major contributing causes to this epidemic of elder abuse: the profit motive. Simply stated, if costs can be slashed to the bare minimum, and if Medicare and Medicaid continue to pay their bills every month, running a nursing home can be quite a lucrative venture for a private health care provider. That makes it even more necessary to hit these negligent or outright abusive (or, yes, homicidal) nursing homes with the maximum possible extent of civil liability - to ensure they feel it where it counts when one of their residents suffers unnecessarily.

March 12, 2015

Elder-against-Elder Abuse in Nursing Homes

When we discuss civil liability that can arise from care of elders in a nursing home, we typically describe such negligence as inadequate living conditions, negligent nurses and orderlies, ignorance of medical needs, even physical, emotional, and verbal abuse. Often, it's exactly this kind of behavior from nursing home owners and employees that leads to lawsuits. But a new study from Cornell University-Weill Cornell Medical College brings some attention to an often overlooked form of abuse that is growing in the elder care community: elder-on-elder violence. In other words, residents behaving violently toward other residents.

The study, which focused on ten facilities based in New York State, found that "one in five nursing home residents ... were involved in at least one aggressive encounter with fellow residents during the four weeks previous to the study." These statistics are shocking, and the reader is encouraged to click the above link to read about the study in full.

From the perspective of a New York nursing home attorney, the key point to emphasize here is that just because a resident, rather than an employee, physically harms another resident, this does not mean that a nursing care facility is completely absolved of responsibility for that harm. Nursing homes are tasked with a legal duty to actively prevent these types of incidents from happening. This is an integral part of the responsibility a nursing home takes on when it opens for business.

When a nursing home ignores that duty, we properly call it negligence. After all, if these elders were of entirely sound mind and body they would presumably not require the round-the-clock care of a nursing home. The nursing home brings in these residents with the full knowledge that they require constant attention and supervision in part to prevent them from hurting themselves or each other. When a nursing home fails to provide such supervision and harm results, the nursing home is directly liable for that negligence.

Certain factors can increase the legal blame placed on a nursing home for a resident-on-resident injury. That is, if a court or jury found certain aggravating conditions, a nursing home could find itself liable for additional damages, including punitive, beyond what it would in a case of so-called "mere negligence." If, for example, a nursing home hired employees without performing proper background checks, and this led to harm, that could be seen as an example of particularly gross negligence. If a resident with a violent behavioral history was welcomed into the facility and not closely supervised, increased liability could result. In terms of elder-on-elder abuse resulting in harm, an attorney should properly evaluate all possible aggravating factors: hiring, training, responses to altercations, and the general day-to-day oversight of the elderly population.

The types of incidents highlighted by the Cornell study are disturbing in the extreme, from cases of biting, kicking, and hitting, to sexual abuse. Considering that these forms of abuse are happening to some of the most vulnerable members of our society, it is that much more important to keep nursing homes alert and on notice for these forms of harm, through both proper regulation and civil lawsuits.

If your loved one has suffered harm because of an incident of elder-on-elder abuse, talk to a lawyer who specializes in nursing home liability. Click this link to contact our firm to learn more about your options.

March 6, 2015

Recent Arrest by Attorney General Schneiderman in Nursing Home Abuse Cases

December was a busy month in the New York State Attorney General's office when it came to prosecuting New York nursing home abusers, with two arrests made and announced. The Attorney General has both criminal and civil powers to enforce the laws of New York; this post will look at how he has exercised those criminal powers in the fight against elder abuse.

On December 10, the Attorney General announced the arrest of Maria Fernandez, a licensed practical nurse employed at the Victoria Lake Nursing Center in Hyde Park, Long Island. Ms. Fernandez was caught on camera slapping an 83 year-old resident of the facility who suffered from dementia and was entirely dependent on others for her care and survival. On December 17, AG Schneiderman also publicized the arrest of a certified nurse aide at the Huntington Hills Center for Health and Rehabilitation, another Long Island nursing home, for improperly and illegally moving a disabled 92 year-old patient from a wheelchair to a bed without the assistance of another staff member, against the patient's "plan of care," resulting in a leg wound. The nurse aide is then alleged to have tampered with paperwork to cover up her breach of care.

In these cases, the key takeaway is that what may seem like "small" violations in the grand scope of criminal law - a slap, a breach of patient care - can carry grave legal consequences when the victim is a nursing home resident entirely dependent on others for their care. That slap has the potential to send Ms. Fernandez to prison for four years. The breach of care in the Huntington Hills facility led to charges (including the cover-up) could also lead to a four-year prison term for the nurse aide. Both of these sentences are potentially longer than they would have been if the victim was not so vulnerable. These are, plainly put, extremely serious crimes.

AG Schneiderman has been excellent on this issue, which has emerged as a top priority in his office. In June, he announced the arrests of nine nursing home employees in Suffolk County after a 72 year-old resident of the Medford Multicare Center for Living was entirely ignored by staff as her vital signs slowly failed in bed. The woman later died. To criminally charge nine employees of a single nursing home is absolutely stunning - it shows a resoluteness, and a distinct ability to understand the uniquely horrific nature of crimes against what is, in the end, one of the most vulnerable populations in our state. And again, note that these employees did not actually beat, torture, or directly injure the victim. Her death was the result of ignorance, of the failure to perform by those who had a legal duty to do so. In this context, such a failure to perform is a very, very serious crime.

It's important to note that these arrests are not the only way the state of New York is fighting elder abuse by health care workers. Arguably, the civil lawsuits filed by AG Schneiderman's office are more powerful methods to effect change, as they do more than punish so-called "bad employees" and target entire nursing homes and corporate owners, who hold primary responsibility for the cultures their facilities adopt. We'll keep you up to date on these lawsuits in future posts, and please remember that if you suspect your loved one to be victim of nursing home abuse, you can contact our office for a consultation, or make a complaint of suspect abuse directly to the New York Department of Health.

February 16, 2015

Westchester Nursing Home Cited for Failure to Prevent Pressure Ulcers

Dumont Center for Rehabilitation and Nursing Care, a Westchester Nursing Home located in New Rochelle, was cited by the Department of Health in a September, 2014 deficiency report. Among the numerous failures uncovered by the DOH were failure to prevent the development of pressure ulcers.

The resident was admitted to the nursing home as a known risk for the development of pressure ulcers. Her assessment revealed that she did not have any pressure sores of Stage I or higher. Approximately nine months into her stay at the facility, the resident fell while walking without the use of her walker. After being transferred to the hospital post-fall, it was discovered that she had fractured her hip and needed surgery. Following the surgery and recovery time in the hospital, she was sent back to Dumont.

As she continued recuperation from the surgery, the resident developed a Deep Tissue Injury to her right heel. At the time of its discovery, the sore was unstageable. Although the nursing home had initiated a careplan to prevent pressure ulcers from developing, a review of the CNA Accountability records showed that interventions had been ordered, but not implemented. Only after the sore had developed did the Accountability records show a pillow to elevate the heel and a low air loss mattress. Additionally, an "EZ boot" had been ordered to further off-load pressure, however it did not appear to have been implemented. The DOH made efforts to interview the CNA who had provided care for the resident following her return to the facility after surgery, but the charge nurse LPN could not identify the CNA. In an interview that the DOH was able to conduct, the LPN Rehab and Wound Care nurse told investigators that the nursing home did not even stock the EZ boots that had been recommended by the Wound Care Specialist.

Noted above, upon admission to the facility, the resident was already a risk for the development of pressure ulcers. Her fall and subsequent immobility added to the risk already present due to her underlying hypertension and diabetes. While this added risk factor does make the prevention of pressure ulcer development more difficult, the nursing home is still charged by state and federal regulations to ensure that an individual exhibiting no pressure ulcers does not develop them unless such development is unavoidable. It is impossible to say with any certainty whether the ordered interventions in this case would have worked to prevent such a wound, had they actually been timely implemented.

The full report on Dumont contains details of other deficiencies recorded by the Department of Health during its visit to the nursing home. These deficiencies, including improper labeling of drugs and biologicals and failure to provide services by qualified persons in accordance with a resident's careplan, can be found here.

February 9, 2015

Long Island Nursing Home Fined After Resident Chokes to Death

Woodhaven Nursing Home, located in Suffolk County, was fined $21,937.50 by the Department of Health after an unsupervised resident choked on a sandwich in December, 2013. The resident was allowed to eat unsupervised despite being a known choking risk due to underlying conditions including dysphagia and impaired cognition. The nursing home had also implemented an aspiration precaution careplan for the resident. He died as a result of the choking incident.

Because Woodhaven had placed aspiration precautions in the resident's careplan, staff was not supposed to give him any food that could lead to choking. Rather, his diet was to consist of pureed solids and/or honey thickened liquids. Additionally, staff was to assist the resident while eating until each meal was finished. Numerous notes in the resident's chart throughout and leading up to the incident document his dietary restrictions. On December 11, 2013, the 24-hour note states that he had expired during the night shift. This particular note contains no other information on the resident.

Details of the patient's death are not recorded until a Nursing Note dated the following day. According to the note, the patient choked while eating a sandwich. Despite resuscitation efforts (Heimlich and suctioning), the staff was unable to revive the man. A separate Nursing Note suggests that although staff were present at the time of the incident, they were not assisting the resident with eating. Staff did advise the resident to eat more slowly, however he did eventually choke on the sandwich and subsequently passed away.

As it often does in cases such as this, the DOH conducted numerous interviews with staff at Woodhaven. One such interview of particular interest was conducted with the Medical Director of the nursing home. He told the Department of Health that he was not aware of a system in place for aspiration precautions. He also told the DOH that he could not recall ever reviewing a policy on aspiration precautions. The Director of Nursing, in her interview with DOH investigators, stated that she did not believe that neglect had occurred "because staff did not intentionally force food down his mouth."

As has been documented many times before on this blog, it is the duty of a nursing home to ensure that the resident environment remains as free of accident hazards as possible. The nursing home must provide adequate supervision to residents to ensure that accidents do not occur. "Accidents" can include choking incidents, such as the one described above, falls, fractures, and any number of other incidents that may occur at a nursing home. Unfortunately for the man and his family who put their trust in Woodhaven to care for him, this incident ended in tragedy.

The entire Department of Health survey can be accessed here.

February 9, 2015

Department of Health Fines Monroe Nursing Home Almost $78,000 for Medication Error

Following a December, 2013 certification survey during which the Department of Health found a significant medication error, Hill Haven, an upstate New York nursing home, has been fined $77,935.00. The fine comes in the form of a Federal Civil Money Penalty, used by state and federal governments when a nursing home does not adhere to minimum standards of care.

pills9.jpgThe Department of Health conducted the survey leading to the fine on December 6, 2013. The reason for the steep amount of the monetary penalty could be that one violation documented, failure to ensure that residents are free from significant medication errors, was a repeat offense from a survey taken about a year earlier. The 2013 survey details the failure of the nursing home to provide a steroid used to control inflammatory diseases to a resident suffering from an inflammatory skin disorder.

Per physician's orders, the resident in question was to receive the drug, Prednisone, on a daily basis while at the same time decreasing the dosage from the start of admission. After failing to administer the drug for a two day period roughly two weeks after admission, the resident required hospitalization. After the week long hospital stay, the resident was readmitted to Hill Haven. Again, the order stated that the patient was to receive the Prednisone, tapering the prescription level on a weekly basis. Despite both the order and the previous hospitalization due to failure to administer his medication, the nursing home again failed to provide the Prednisone to the patient. He was sent back to the hospital only seventeen days after his readmission to the nursing home.

Interviews conducted of the Registered Nurse Manager, attending physician, and Medical Director revealed that all were aware of serious side effects of abruptly stopping Prednisone usage. Additionally, and somewhat obviously, the facility's policy stated that all medications were to be administered in accordance with physician orders.

Both state and federal regulations dictate that a nursing home must ensure that residents are free of any significant medication errors. Perhaps the simplest way to do this is to have a physician examine incoming residents, develop an individual medication plan, and communicate this plan via physician's order to all other caregivers. When these orders are not followed by the nursing staff, residents can face serious consequences, including hospitalization and death. The Department of Health did not include in its survey the current state of the resident's health.

The full report from the DOH can be found here on its website.

January 30, 2015

Bronx Supreme Court Denies Defendant's Motion for Summary Judgment as to Negligence and Public Health Law Violations

A Decision and Order issued by the Hon. Stanley Green in Bronx County Supreme Court in March, 2014 denied defendants' summary judgment motion as to negligence and violations of NY Public Health Law in a Bronx nursing home negligence action. Judge Green did grant summary judgment for the defendants as to an assault and battery cause of action.

The facts surrounding the complaint involved a nursing home fall and the subsequent development of pressure ulcers. Plaintiff had been admitted to the defendant nursing home as a resident with a high risk for both pressure ulcers and falls. One particular morning several months into the resident's stay, a CNA entered her room on her care rounds. After raising the bed and removing a nearby floor mat, the CNA left to prepare a wash cloth in the bathroom. Upon re-entering the resident's room, the CNA found her on the floor with several cuts to the face. In addition to the fall, the resident developed several pressure sores during her stay at the defendant facility.

The nursing home moved for summary judgment on grounds that the fall was unavoidable, and that it had exercised all reasonable care with respect to the resident's treatment. In addition, the defendant moved for dismissal of the Public Health Law cause of action as duplicative of the negligence cause of action.

Judge Green's Decision addresses and dismisses a cross claim by a co-defendant (the nurse staffing company) as to indemnification by the nursing home. Although an interesting contractual case study, the merits of this motion fall outside the realm of this blog. More relevant to our purposes is the short, yet important, discussion that Judge Green provides as to the defendant's claim that plaintiff's Public Health Law cause of action was duplicative.

In denying this aspect of the motion, Judge Green cites Zeides v. Hebrew Home for the Aged, 300 A.D.2d 178, 753 N.Y.S.2d, 450, a case well known by nursing home attorneys. Zeides notes that a cause of action under the Public Health Law is not duplicative of negligence. Per Judge Green's opinion, "remedies under the Public Health Law are in addition to and cumulative with any other remedies available at law or in equity and a plaintiff need not choose between traditional tort causes of action and a PHL 2801-d cause of action, but may pursue both." (citations removed).

With Zeides as precedent, Judge Green denied the defendant's motion to dismiss the PHL cause of action. Having survived summary judgment, the plaintiff may now move forward with pursuing her case.

Placide v. United Odd Fellow and Rebekah Home, Inc. et. al., NY Slip Op 31082(U)

January 29, 2015

First Department Upholds Summary Judgment for Defendant in Bronx Nursing Home Action

A March, 2014 Decision and Order by the Supreme Court Appellate Division, First Department, upheld a lower court's finding of summary judgment for a defendant nursing home. The underlying complaint, negligence against the Bronx nursing home for failure to properly treat and heal a pressure ulcer, leading to amputation, was therefore dismissed.

wheelchair room.jpgPlaintiff-appellant had been discharged to the defendant nursing home with two existing Stage IV pressure ulcers on his left leg. A prior diagnosis at a Florida hospital stated that the decedent was a candidate for potential amputation due to the deterioration of the ulcer. In fact, the hospital advised that the patient undergo the procedure because the prognosis for recovery was so slight. Ultimately the resident did have his left leg amputated below the knee. The plaintiff sued, claiming that the nursing home's negligence in allowing a previously healed pressure ulcer to reopen was the cause of the eventual amputation.

The First Department disagreed with the plaintiff-appellant. In doing so, the Court relied upon conflicting accounts as to the origin of the injury. Additionally, the defendant-respondent's expert opined that the amputation was inevitable, due to the preexisting condition. He also claimed that the nursing home had adhered to appropriate medical standards in treating the patient. The appellant's expert asserted a merely conclusory opinion that the amputation was avoidable because "no other extremity required amputation."

Clearly the defense expert affirmed that the nursing home did not depart from an accepted standard of care. After the defendant made this prima facie showing, it became incumbent upon the plaintiff's expert to raise a triable issue of fact to overcome summary judgment. Because the Court felt that the plaintiff's expert affirmation was conclusory, the plaintiff was unable to meet his burden and overturn the lower court's finding.

Iciano v. Franklin Nursing Home, 2014 Slip Op 3009