New York Nursing Home Abuse Lawyer Blog

Bronx nursing home Regeis Care Center received sub-standard assessments across several categories in a Department of Health certification survey on June 12th of this year. Among these deficiencies was a violation of 42 CFR 483.25(c), which states, in relevant part, that a facility must ensure that a resident who enters without pressure sores does not develop pressure sores during his or her stay, unless the resident's condition demonstrates that development of such sores was unavoidable.

The resident cited by the DOH was admitted to Regeis on April 13, 2012. At the time of admission, the resident's skin was intact, although the assessment performed indicated that she was at high risk for the development of pressure sores. Despite this potential to develop pressure sores, the DOH was unable to find a careplan for prevention of pressure ulcers prior to April 23. Additionally, nothing in the medical records indicate that the resident was turned and positioned before this date. Turning and positioning is a common intervention both to prevent, and to promote the healing of, pressure ulcers. By the time the care plan was implemented on April 23, the resident had developed a Stage II pressure ulcer to her sacrum, or lower back. By May 15, the wound had progressed to a Stage III ulcer.

A nursing home owes a duty to its residents to take measures to prevent pressure ulcers from developing. When a resident enters and is assessed upon admission as being high risk for a pressure ulcer, the nursing home must implement and follow through on an appropriate care plan to prevent these ulcers from developing. The Department of Health investigation into this particular case found that the facility failed to fulfill this duty.

The full report by the DOH, including a listing and description of other violations contained in the June 12 survey, can be accessed here.

If you or a loved one has suffered from a bedsore or multiple bedsores, please contact the New York Bedsore Attorneys at Gallivan & Gallivan.

In a certification survey dated July 6, 2012, Mosholu Parkway Nursing and Rehabilitation Center, a Bronx Nursing Home, received deficient ratings in thirteen categories monitored by the Department of Health. The areas for which the DOH found that the nursing home did not meet standards were:

• Providing services by qualified persons in accordance with a resident's care plan

• Development of comprehensive care plans

• Development/preparation/review of the care plan

• Dietary services

• Ensuring that the facility is free from accident hazards

• Providing drugs and biologicals

• Physical environment

• Proper labeling of drugs and biologicals

• Not catheterizing a resident unless unavoidable

• Ensuring that a resident receives treatment to maintain hearing and/or vision

• Maintaining a safe/clean/homelike environment

• Ensuring that services provided meet professional standards

• Providing residents with rooms measuring at least 80 square feet

The listed deficiencies are various violations of Title 42, sections 415 and 483 of the Code of Federal Regulations. The comprehensive findings of the Department of Health can be found here.

If you or a loved one has been the victim of substandard nursing home care, please contact the Nursing Home Attorneys at Gallivan & Gallivan.

In April of this year, the Medicaid Fraud Control Unit (MFCU) prosecuted Vicky Williams, a CNA who had been employed at Beth Abraham Health Services Facility, for falsifying records of a resident at the home. The resident in question was at risk for wandering and elopement, and in fact did elope from the facility early one morning just before 2:00 a.m. Nurse Williams, despite the fact that the resident was not even on the premises, documented hourly checks as routine for the hours of 3:00 a.m. to 7:00 a.m.

The mission of Medicaid Fraud Control Unit is to identify and prosecute providers who attempt to defraud Medicaid. The MFCU tries to prevent a facility or provider from billing Medicaid recipients for services not rendered, as well as to prevent falsification of records, among other aspects of the Unit. Ultimately the MFCU exists as much to protect Medicaid recipients as it does to prosecute the fraudulent providers. The case of Nurse Williams illustrates just such a scenario, as she falsified the resident's records while claiming to have provided services not rendered.

Additional recent actions by the MFCU, as well as other actions against New York nursing homes, can be found in the Long Term Care Community Coalition Quarterly Enforcement Newsletter.

Brooklyn Center for Rehabilitation and Residential Health Care, located on Coney Island Avenue, appeared in a May, 2012 Department of Health Certification Survey for several deficiencies. Among these shortcomings was the failure to properly manage the personal funds of its residents.

A nursing home facility is bound by the duty to manage the personal funds of a resident if the resident so requests. In concert with this duty is to ensure that the resident and/or his or her legal representative is aware of Medicaid eligibility limits. The facility must also inform when the resident's personal funds come within $200 of the eligibility limit. Currently, the resource limit for a resident of a nursing home is $14,250.00. The DOH report documents one resident whose personal funds accrued to over $15,000.00 without notification. Two other residents were in excess of $24,000.00. In all three cases, there was no documentation that the residents' respective next of kin was notified of nearing, and then surpassing, this limit. When interviewed, the nursing home administrator admitted that the facility was not reviewing these personal funds.

The full report can be found here.

Medicaid planning and asset allocation is an essential aspect of elder care and estate planning. If you or a loved one needs to discuss these important issues, please contact the elder law attorneys at Gallivan and Gallivan here.

From time to time the Department of Health issues quality comparisons for nursing homes in specific areas of care. One such area is percent of residents at high risk for pressure sores who have pressure sores. This particular survey was conducted in Queens between January and September of 2010.

For the time period in question, the national average for high risk residents of nursing homes who developed pressure sores was 11%. In New York State, the average was 12%. While twenty-one Queens nursing homes came in at or below the state average, a far greater number were above. Thirty-five nursing homes in Queens County registered a score of 13% or higher. The worst offenders, those homes scoring 20% or higher, were:

• Dr William O Benenson Rehab Pavilion (20%),

• Cliffside Rehabilitation & Residential Health Care Center (22%),

• Highland Care Center (22%),

• Silvercrest (22%),

• Midway Nursing Home (23%),

• New York Center for Rehabilitation & Nursing (23%),

• Rockaway Care Center (23%),

• Long Island Care Center Inc (24%),

• Queens Boulevard ECF, Inc (24%),

• Regal Heights Rehabilitation and Health Care Center (24%),

• Franklin Center for Rehabilitation and Nursing (26%),

• Fairview Nursing Care Center Inc (27%), and

• Resort Nursing Home (39%)

Nursing homes owe a duty to their residents to prevent pressure sores unless such sores are clinically unavoidable. With high risk residents, for example patients who are immobile, the possibility of the development of a pressure sore is greater than in a lower risk resident. This does not excuse the nursing home from doing everything possible to prevent the sores from developing, and certainly percentages above 20% as evidenced in this study are unacceptable.

The full comparative study can be accessed on the DOH website by clicking here.

In an April complaint survey, the Department of Health reported that Silvercrest, a Jamaica, Queens based nursing home, failed to ensure that its residents were free of significant medication errors. This failure was noted in one out of three sampled residents.

By physician's orders, the staff was to administer medication to the resident in question once daily. Initially, the prescription was twice daily, however the physician altered this in the second order about one week after the first. Despite this change in prescription, staff at the facility continued the medication regimen twice daily for approximately one month after the order change. Subsequent interviews of the nursing staff uncovered a pattern of miscommunication within the facility. In some instances the night staff was unaware that the day staff had already medicated the resident. In others, the staff simply did not fully read the physician's orders. The Assistant Director of Nursing stipulated that the nursing staff did not adhere to the nursing home's own policies and procedures. Had they acted with more diligence, this error could have been avoided.

The Code of Federal Regulations states that the facility must ensure that residents are free from any significant medication errors. Certainly doubling the dose of medication that a physician prescribes falls under the category of "significant." The medication in question was a diuretic, and as such could have led to dehydration, nausea, or other serious side effects. The DOH report states that this incident did not leave the patient in immediate jeopardy, but the potential for more than serious harm was certainly present.

The report by the Department of Health can be accessed here.

In an April, 2012 deficiency survey, the Department of Health found that Hebrew Home of Westchester, a Valhalla nursing home, failed to promote an environment in which residents maintained nutritional status. According to the CFR, a facility must ensure that residents maintain acceptable body weight and protein levels unless his or her condition precludes this. Additionally, the nursing home must provide a therapeutic diet in the case of a resident with nutritional problems. 42 CFR 483.25(i).

The report documents unexplained weight loss experienced by two residents. In the first case, the patient's weight declined almost eighteen pounds over a seven month period. In the midst of this weight loss, a nutritionist recommended considering adding a health shake to the resident's diet to stabilize her weight, however nothing in the resident's record indicates that this shake was provided. The second resident lost over forty-two pounds in just over a month, with no documentation of the staff attempting to ascertain the cause or causes of the loss. Additionally, although the nursing staff noticed that the resident was eating at most half of her food during mealtime, the DOH found no evidence that this diminished appetite was reported to a nutritionist or diet technician.

In both of these residents' cases, the facility failed to meet either requirement of the regulation discussed above. Without determining the cause of the residents' weight loss, it cannot be said that either of their conditions demonstrated that maintaining their individual nutritional statuses was not possible. Further, without reporting the weight loss to a nutritionist, or following the advice of the nutritionist, the nursing home did not provide the required therapeutic diet.

Additional deficiencies, as well as further details of these two residents, can be found in the DOH certification survey here.

In a complaint survey dated March 22, 2012, the Department of Health noted that Friedwald Center for Rehabilitation and Nursing, a Rockland County nursing home, failed to keep the facility free of potential accident hazards. The survey illustrates three incidents with potential to cause more than serious harm to residents.

One resident, an aspiration risk, was meant to be on a "ground diet," whereby his food would be blended into a thick liquid form before consumption. This reduces the risk of the resident choking. A physician's order upon admission did not note the necessity of a ground diet. In a separate incident, surveyors noticed an unattended and unlocked medicine cart. The condition of the cart left the medications stored within accessible to passersby. The final accident hazard involved suction machines unplugged and/or inaccessible during meals in the dining room. If a situation needing the machines had arisen during mealtime, the units would not have been ready for use.

As codified in the CFR, a "facility must ensure that the resident environment remains as free of accident hazards as possible." 42 CFR 483.25(h). The scenarios detailed above create the possibility for two common forms of nursing home accidents, choking and medication errors. Fortunately for the facility and its residents an actual accident did not arise from these incidents. Perhaps with this warning from the DOH, the facility will be more diligent in the future to create a safer environment for its residents. A copy of the full report can be found here.

Northern Riverview Health Care Center, a Rockland County nursing home, was deficient in providing adequate care to residents according to an April, 2012 certification survey from the Department of Health. Among the numerous violations documented by the Department was a failure to provide proper treatment to prevent or promote the healing of pressure sores.

We have written many times about the dangers of pressure ulcers for elderly nursing home patients. Aside from tremendous pain and discomfort, pressure sores can lead to infection, surgeries, and death. Because of these extreme side effects, federal regulations state that the facility must ensure that residents entering a nursing home without pressure sores remain free of them unless unavoidable despite using all reasonable means; and that residents with pressure sores receive treatment necessary to promote healing, prevent infection, and prevent new sores from developing. For the purposes of this case at Northern Riverview, we focus on the second half of the regulation.

The resident chronicled in the Department's report was readmitted to the facility following a hospital stay. Upon this readmission, pressure sores were present on her heels. However, the staff failed to "stage" the ulcers upon re-admission. Interventions noted in the care plan called for heel booties to be worn at all times, except during hygienic periods, such as cleaning the patient. In contravention of this care plan, the patient was observed on numerous occasions lying in bed without heel boots or protectors, often with the effected areas in direct contact with the bedclothes or other parts of the body. As is common knowledge in the medical community, pressure ulcers are caused by unrelieved pressure against the skin. Allowing a known trouble area of the body to go without protective measures to prevent pressure ulcers creates a substantial risk that pressure ulcers will develop, or existing ulcers will worsen. In this case, the pressure sore of the right heel advanced to a Stage III, one level below the most serious Stage IV ulcer.

For a full recap of all violations by Northern Riverview, the Department of Health report can be viewed here.

In its latest inspection of Boro Park Center for Rehabilitation and Healthcare, the Department of Health found that the facility was not free of accident hazards, as is mandated by CFR 483.25(h). Facilities must remain as free of these hazards as possible, and residents must be supervised and receive assistance devices to prevent accidents from occurring.

The DOH noted that hallways were missing pieces of tile in certain areas. In one area, the missing tile was large enough to cause the possibility of catching a heel or toe, creating an obvious fall hazard. Management blamed the missing tile on a water leak from several weeks prior to observation, and informed the DOH that the facility was in the process of renovations.

A missing tile in the floor, if unnoticed, creates a tripping hazard for just about anyone. This risk is amplified when considering the manner in which an elderly, geriatric resident of a nursing home moves about. Common sense would dictate that an elderly individual, taking smaller strides and not lifting his or her feet very high off the ground, would be more prone to catching a toe on the hazardous area. The use of a walker or a cane simply adds to the possibility of getting something caught in the indent, potentially leading to a fall. And as we have discussed previously, falls can be disastrous for elderly nursing home patients.

The facility asserted that it would fix the tile immediately following the inspection, as it had by then sufficiently dried out subsequent to the water leak. To read of other violations noted in this report, regarding food preparation and distribution, and providing necessary care for the highest practicable well-being, visit the Department of Health website here.

Victoria Home, a nursing home in Ossining, New York, was the focus of a June Department of Health deficiency report, which details that the facility did not ensure that services provided must meet professional standards of care. The right to this level of service is provided in CFR 42 Section 483.20(k)(3)(i).

The incident illustrated in the report involved a 102 year old resident with a gastric tube. Although the resident was categorized as receiving nothing by mouth, the physician ordered that a prescription be administered by mouth. Although the nursing chart indicated that the nurse had in fact administered this medicine orally, in a subsequent interview, she stated that she had provided the medication via the gastric tube.

It appears from the report that the nurse administered the medication in the correct manner. The prescribing physician may have overlooked the patient's "nothing by mouth" status, or simply made a mistake. The nurse's error, according to the unit manager, was that the order should have been changed in accordance with the resident's chart. Ultimately, the resident receiving the medicine correctly is important, but not having the physician revise the order leaves open the possibility that in the future the medicine will be given incorrectly. Maintaining accurate records and charts is a must in a nursing home environment. Fortunately in this case, the error did not lead to serious injury for the elderly resident.

The Department of Health report can be found on its website, or by clicking here.

In a report released April 27, 2012, the Department of Health released its deficiency report for Brooklyn United Methodist Church Home. Amongst several failures in the area of disaster preparedness, the report details that the facility failed to promptly deliver mail to its residents. This right is manifested in the Code of Federal Regulations, 483.10(i)(1).

A resident interviewed by the DOH informed the department that residents receive mail only Monday through Friday. Mail that is delivered to the facility on Saturdays does not reach the nursing home patients until sometime on Mondays.

This is a far cry from some of the more harmful topics that this blog often touches on, such as pressure ulcers, falls, and medication errors. Yet, it is still a guaranteed right for residents of a nursing home facility. Additionally, for some of these elderly individuals, the mail is one of their few means of human interaction with the outside world. Communication is vital for these patients, notably in patients dealing with issues such as depression, Alzheimer's or dementia, or other mental illness. Although, as the DOH reports, there is potential for no more than minimal harm inherent in this violation, ideally Brooklyn United Methodist will find a way to remedy this issue sooner rather than later.

The full report on Brooklyn United Methodist, including several safety violations, can be read here.

We have discussed in the past that an active lifestyle may be a deterrent to the development of Alzheimer's Disease. Recent studies have indicated that there may be a correlation between changes in the way one moves to early signs of the onset of Alzheimer's Disease. The New York Times reports on five studies recently released, which show that decreased cognitive function can often manifest itself in the simplest of everyday tasks, such as walking.

In one study, participants were asked to walk normally, as well as to walk while performing seemingly simple tasks, such as counting backwards. Researchers found that individuals with mild dementia or Alzheimer's had difficulty maintaining a normal gait while performing some of these tasks. In certain cases the participants were unaware of their inability to maintain a normal pace or gait while multi-tasking.

A study conducted by the Mayo Clinic administered walking tests followed by cognitive tests. It appeared that people with difficulty adjusting their normal gait, and people with slower than average walking speeds, scored lower on cognitive tests given as a follow-up.

Doctors involved in the studies pointed out that this research is in its infancy, and much more research needs to be done. With this new knowledge, however, perhaps recognizing and treating dementia and Alzheimer's is entering a new phase.

The full report can be found in the New York Times.

Little Neck Nursing Home, located in the Bronx, was cited in January for violating 42 CFR 483.10(b)(4). This provision of the Code of Federal Regulations gives nursing home residents, among other things, the right to form an advance directive plan.

For the resident in question, advance directives were discussed on several occasions. He made it clear that he would trust his daughter and son-in-law to make decisions for him should the occasion arise that he were unable to make decisions for himself. Despite these conversations with the nursing home staff, advance directives paperwork was not completed. The resident's son-in-law, when interviewed, also indicated that he would be willing to sign such paperwork, however no one at the facility had discussed the process with him or his wife. The nursing home's own policy states that "Information will be given to the resident and family/representative at the time of admission that will explain the nature of recognized Advance Health Care Directives and how such directives may be executed. Designated staff will assist the resident and/or representative in formulating and recording an Advanced Health Care Directive desired, and will assure that such directives are executed voluntarily." According to the DOH report, this was not done.

An underlying theme of the sections of the Code of Federal Regulations discussed frequently on this blog is that of maintaining dignity for nursing home residents. Allowing a patient to determine how to spend the remainder of his or her life is an important aspect of fulfilling a resident's dignity. Designating a health care proxy, executing a Do Not Resuscitate if desired, and other end of life measures ensure that the elderly resident spends his or her final days in the manner in which he or she desires. Failure to comply with the steps necessary to implement these measures could preclude the resident from this comfort and peace of mind in the final moments of life.

The full Department of Health findings can be found here.

Fieldston Lodge, a Bronx Nursing Home, was cited in a February, 2012 DOH Deficiency Survey for failing to maintain records in accordance with accepted professional records and practices. This failure violated the mandate set forth in Title 42 Section 483.75(l)(1) of the Code of Federal Regulations.

In the incident documented by the Department of Health, a nurse signed for a medication that had not been administered to a resident. The nurse provided the patient several, but not all, required medications. Despite skipping over one of the prescribed medications, the nurse signed the chart indicating that all necessary prescriptions had been administered.

Properly administering medications and keeping accurate records are crucial aspects of an LPN's job in a nursing home. Residents are dependent upon these LPN's for their own well-being. As the DOH notes in its report, carelessness such as the type demonstrated by this LPN can often have the potential for more than minimal harm. Luckily for the resident, no actual harm was done in this case.

To read the full report of findings by the Department of Health, click here.