Articles Posted in Miscellaneous

The American Health Care Association (ACHA) filed a lawsuit against the Centers for Medicare and Medicaid Services (CMS) on Monday, October 17 in the U.S. District Court for the Northern District of Mississippi. The suit was filed after CMS finalized a regulation barring nursing homes from forcing residents to enter into arbitration agreements. ACHA and four long-term care providers filed a lawsuit against the secretary of Health and Human Services as well as the acting administrator of CMS.

An arbitration clause is a clause in a contract requiring parties to resolve issues through the arbitration process, therefore preventing disputes from being litigated in court. These clauses have forced claims of sexual harassment, elder abuse and even instances of wrongful death from being handled in an open court. CMS has issued a rule that will prevent nursing homes receiving federal funding from requiring arbitration clauses be signed in their contracts. Continue reading

An experimental drug may have led researchers one step closer to preventing Alzheimer’s disease. The drug is called ‘aducanumab’ and was developed by Biogen, a pharmaceutical company based in Massachusetts who also funded the study; results were published on Wednesday on

alzheimer's study

In patients with Alzheimer’s, scientists have found an abnormal structure called ‘plaques’ in their brains, which they believe damage and kill nerve cells. Although these structures are found in most aging brains, they are not as abundant as those with early onset Alzheimer’s. The new drug targets, destroys and removes plaques, which are toxic proteins that lump together and build up in the brain. Researchers are optimistic yet cautious due to the small size of the trial,. However, neurologist and co-author of the study Stephen Salloway, said this is the best news on Alzheimer’s in 25 years.


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Nursing homes are restricted in the amount of Medicare dollars they receive from federal and state governments. In addition, a large portion of their income is generated by payments from residents for services and stays. Rather than increasing the level of care and access to medical personnel, some nursing homes have focused their attention on increasing unnecessary luxuries to attract more residents.

In 2011 alone, Medicare paid $2.8 billion towards hospital bills for infected bedsore that required her to be hospitalized.

Experts have labeled this bait-and-switch the “chandelier effect” because the nursing home will promise bells and whistles and instead continue to deliver sub-par care for high prices. By focusing on unnecessary luxuries, nursing homes are unable to provide the residents with what they really need – competent medical care. A resident enticed by the attractive amenities will soon find that they will be unable to enjoy any of the amenities if they don’t receive proper care. In fact, many residents have died as a result of the substandard care in today’s nursing home facilities.

The elderly victim of the assault was a resident of the West Lawrence Care Center in Rockaway, New York who suffered from osteoporosis, arthritis, and bone marrow disease. Due to her ailments, the victim was bedridden at the time of the assault. As such, she was unable to take care of herself on her own and depended on the assistance of nurses and nurse aids at the Rockaway facility.

Marie Jeanty from Queens was working at West Lawrence as a nursing aide. On August 15, 2014, while in the victim’s room, Jeanty was attempting to change the victim’s clothes and sheets. Jeanty became angry with the victim and punched her numerous times on the arm and shoulder. Jeanty then pushed the victim into the bed. The victim’s face smashed against the bed rail. As a result of the assault, the victim’s face and arm swelled, her body was covered in bruises, and she developed a black eye. She was transported to St. John’s Episcopal Hospital for treatment.

Jeanty was arrested on Thursday, April 2, 2015 for the assault as part of an investigation conducted by The New York State Office of the Attorney General’s Medicaid Fraud Control Unit, which is tasked with investigating neglect and abuse at nursing homes. Jeanty was charged with second degree assault and two counts of endangering the welfare of a vulnerable person. Second degree assault is a Class D violent felony, which faces 1 to 7 years in prison. Endangering the welfare of a vulnerable person can be a Class E or Class D felony, which faces 1 to 7 years in prison.’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, 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. 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%.

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.

In March, 2013, the Supreme Court, Nassau County decided that a delay of roughly one and a half years in appointing an Administrator did not prejudice the defendants to the extent that they could not defend a nursing home negligence/malpractice action. Abdul Hasan, the named plaintiff in the complaint, died approximately two months after plaintiffs filed their pleadings. Because of Hassan’s death, it was necessary to substitute a plaintiff to continue the action. As Hassan died intestate (without a will), this substituted plaintiff would necessarily be the Administrator if his estate. Due to complications with the petition, or application, for Letters of Administration, plaintiffs were unable to have a representative appointed until about eighteen months after Hasan’s death.

The co-defendants, a Nassau County nursing home and a Nassau County hospital, argued that this delay severely prejudiced their ability to defend the action. They claimed that plaintiffs had been uncooperative; that the decedent had not been deposed; that discovery had been delayed; and that witness memories had faded to the extent that they would be unable to recall the circumstances underlying the complaint. In response, plaintiffs argued that they were unable to adequately complete discovery without the benefit of a representative of the estate; that they could, at the time of the decision, complete such discovery; and that the defendants had failed to meet their burden of showing prejudice. In its Decision for the plaintiffs, the Court noted that plaintiffs could not have acted without a legal representative of the estate, and that defendants merely showed delay, not prejudice. The Court ordered a preliminary conference to move forward and facilitate the discovery process.

Often in nursing home negligence actions, the individual who suffered the injuries is deceased. In these situations, a personal representative of the decedent’s estate must be appointed for the action to continue. The case described in this post involves an Administrator, the name for a personal representative appointed when the decedent did not have a will (as opposed to an Executor, who would be named within the decedent’s last will and testament).

Selecting a nursing home for your loved one is a difficult decision. It is not easy to trust someone else or a stranger to meet the needs of your mother, father, spouse, or family member. Here is a list of factors you should consider when picking the right living arrangement and nursing home for your loved one.

1. Assess the Needs of Your Loved One

oldman.jpgBefore choosing a nursing home, it is best to understand the needs of the elderly person. Take into consideration your loved one’s medical conditions and the level of care required. You don’t want to assume that the nursing home or living facility has the right services, staff, medical equipment, or expertise to care for the individual. You’ll want to make sure that the nursing home has the required necessities to meet the needs of the person.

Parkview Care and Rehabilitation Center, a nursing home in Massapequa, Long Island, was cited in an April Department of Health certification survey for nineteen deficiencies. The most serious of these deficiencies resulted in “actual harm” to a resident. A finding of actual harm is the second most serious level of severity that the DOH assesses to a nursing home during a certification survey.

chest.jpgThis most serious incident involved a failure to promptly notify an attending physician of the radiology findings for a resident of Parkview. Because the resident was exhibiting symptoms of pneumonia, a chest x-ray was ordered. The physician was not notified of the results, or lack thereof, of the x-ray until four days after it was taken. Nursing notes for the time between the performance of the x-ray and the and the resident’s transfer to the hospital indicate that the nurses did not check the resident’s breathing, despite the symptoms of pneumonia that had prompted the physician order for the x-ray. When the physician finally received the x-ray four days after it was performed, he became aware that the patient was suffering from a collapsed left lung. The attending immediately ordered a transfer to the hospital, where the resident was treated for his condition.

In an interview with the DOH, the attending physician indicated that it is incumbent upon the radiology department to notify him immediately of any abnormalities or dangers indicated in the x-ray. Radiology did not adhere to this protocol in this instance.

A study recently reported in the NY Times found that consumer satisfaction ratings for nursing homes do not always match up with the ratings given to facilities by their residents and their families. The largest disparity occurred with respect to facilities rated at the highest level (five stars) on Medicare’s Nursing Home Compare website. Although one would expect that a facility rated five out of five stars would have excellent satisfaction rates, the survey found otherwise. In many cases, residents expressed very low satisfaction rates at these nursing homes that Medicare had rated at the top of the list. Often, these residents’ families felt the same.

In the Times’ investigation, it was discovered that this discrepancy may be due to differing expectations between Medicare, who ranks the nursing homes, and residents and their families, who deal with everyday life within the facility. While Medicare primarily looks to factors such as infection rate, pressure ulcers/wound care, and medication errors, resident and their families, many of whom are unaffected by these deficiencies, look more to quality of life and dignity within the facility.

Consideration has been given to using feedback from residents and their families into the Medicare rankings, although that has not occurred yet. While it would enable a fuller view of life within nursing homes, the added cost has to be justified to implement such a program. In the meantime, a lesson to be learned for anyone contemplating placing a loved one in a nursing home is to take the Medicare ratings for what they are: accurate measurements based upon the criteria studied, but not necessarily a complete picture of life within a particular nursing home.