New York Nursing Home Abuse Lawyer Blog

The Sarasota Herald-Tribune is reporting that Harmony Healthcare Nursing Home, which had its doors shut in 2011, was opened and operated by two men convicted of Medicaid fraud in New York in 1979. The nursing home was closed amid findings of widespread immediate jeopardy to its residents.

An investigation conducted by the newspaper found that criminal background checks were not properly completed for the two owners--possibly because the wives of the two men, Benjamin Gelbtuch and Neil Ellman, were listed as the property owners. Paperwork on file for the home shows the two being intimately involved, however. In fact, Gelbtuch signed for and procured the loan that the partners used to open the property. The Herald-Tribune investigation also found that Gelbtuch and Ellman were running the same type of Medicaid-reliant home that they defrauded back in 1979.

The report details numerous nursing home violations, from widespread improper maintenance and administration of medication to the choking and subsequent death of an elderly resident who was improperly fed a cookie while respirating through a breathing tube. Certainly there were other serious violations in addition to these, as the article notes that Harmony Healthcare failed eleven inspections, as well as the finding of widespread immediate jeopardy.

This case in Florida highlights one of the issues that abounds in nursing home abuse cases: a post hoc punitive system rather than preventative measures taken before abuse has the opportunity to occur. Had proper diligence been taken, perhaps the criminal records of the two primary owners of this facility would have been revealed, and the situation could have been prevented before these widespread violations took root. In addition to punishing violators for their transgressions, government agencies granting licenses to nursing home facilities should look to ensure that facilities are opened with the proper motives and by individuals willing and able to run care facilities according to state and federal guidelines.

The full story, including details of the criminal histories of Gelbtuch and Ellman, can be found here in the Sarasota Herald-Tribune story.

In a press release dated March 8 of this year, New York Attorney General Eric Schneiderman announced the arrest of a Certified Nurse's Aide from the Woodhaven Center in Port Jefferson, Long Island. The Suffolk County nursing home staffer was accused of taking a picture of the resident's genitals without the resident's permission. Having taken picture on his cell phone, the aide, identified as David Rover, then texted the image to a nursing aide student at North Shore Career Training Institute.

The Attorney General's office announced that it was charging Rover with two Class E felonies: unlawful surveillance in the second degree, and dissemination of an unlawful surveillance image in the first degree. Rover reportedly admitted to taking the photograph, which was later found by the Medicaid Fraud Control Unit on his device.

This blog usually focuses on civil violations suffered by nursing home residents at the hands of negligent staff at nursing homes. Less frequently do the actions discussed rise to the level of potential criminal prosecution. In a statement, Attorney General Schneiderman referenced two areas at the forefront of rules and regulations governing nursing homes--respect and dignity. He added that his office "will take action whenever [they] see facility staff abusing the rights of the people left in their care." Perhaps viewing this statement as a crackdown on nursing homes by the Attorney General is reading too much into it. At the very least, however, it is a call to arms from one of our state's highest offices to protect some of the most vulnerable members of our society--the elderly and infirm.

The full press release from the Attorney General's office can be found here.

In an October 24, 2012 press release, New York State Attorney General, Eric Schneiderman, announced the arrests of two Certified Nurse Aides ("C.N.A.) at Tarrytown Hall Care Center. The aides, Maureen Flowers and Donna Pagan, allegedly caused the death of an elderly resident by failing to provide an appropriate transfer and covering up the crime.

According to the AG's investigation, C.N.A. Flowers was assigned to an 86 year-old-resident at the nursing home that had numerous underlying medical conditions and required 24 hour total care. Due to her condition, the resident's care plan required that a mechanical lift and two person assist be used when transferring the resident from bed to wheelchair.

Flowers reportedly attempted to transfer the resident by herself with the use of a lift. During the transfer, the resident fell to the floor, suffering multiple fractures to her spine, right leg, and nose and bruising to her face. Tragically, instead of seeking immediate attention from emergency personnel, Flowers sought out co-worker Donna Pagan, 35, and asked her to lie and say she had assisted her as she attempted the transfer. In the meantime, the resident lay on the floor bleeding.

After the two aides agreed to cover-up the incident, the resident received medical attention but died two hours later at Westchester Medical Center. In interviews and written statements provided to supervisory staff of the Care Center, Flowers and Pagan stated that they had both been present during the attempted transfer.

AG Schneiderman explained, "This is a sad and disturbing case of a nurse's aide who, by ignoring both the rules of the home where she worked and her training, caused the death of one of our most vulnerable citizens."

Flowers, a Bronx resident, is charged with Endangering the Welfare of a Vulnerable Elderly Person in the First Degree, a Class D felony. Pagan, of Peekskill, N.Y., is charged with Falsifying Business Records in the First Degree, a Class E felony.

A.G. Schneiderman Announces Arrests Of Two Nursing Home Aides Who Failed To Provide Care Resulting In Death Of Elderly Resident, October 24, 2012.

The attorneys at Gallivan & Gallivan represent victims of nursing home neglect and abuse in the New York area. Contact us if you or a loved one has been injured due to negligence at a New York Nursing Home.

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.

Two employees at a Staten Island long-term care facility, Lily Pond Nursing Home, recently lost their respective licenses after a 40 year-old resident was abused. Cynthia Ferry, a Certified Nurse Aide at the facility, was observed by an EMT striking the 40-year old resident in the head.

Josefina Bernabe, a Licensed Practical Nurse, worked the evening shift as a Nurse Supervisor on the night of the assault. She was advised by the EMT worker that he witnessed C.N.A. Ferry strike the resident on the head. After being informed of the incident, LPN Bernabe told the EMT worker not to report it to protect Ferry from getting in trouble.

Both employees were charged by the Medicaid Fraud Control Unit of the New York State Attorney General's Office. As a result of the charges, both were forced to surrender their respective licenses (Ferry - C.N.A.; Bernabe - L.P.N.) with the condition the they refrain from engaging in any employment in the health care field.

Long-Term Care Community Coalition, Enforcement Actions, 3/16/11 - 6/15/11.

A key facet to President Obama's health care reform initiative has been eliminating health care fraud throughout the United States. Yesterday, charges were announced against 91 individuals, accusing them of fraudulently obtaining approximately $300 million from the Medicare system. One of the most shocking indictments involves a doctor billing Medicare for services provided to the deceased, as well as providing psycotherapy sessions in excess of 24 hours a day.

US Attorney General Eric Holder announced the arrests yesterday with Kathleen Sebelius, Health and Human Services Secretary. FBI Executive Assistant Director Shawn Henry said in a statement: "[T]he health care system is part of our nation's infrastructure, and we must do everything in our power to protect the integrity of Medicare."

On many levels, the Obamacare initiative has been a polarizing issue for the American people. It will certainly remain so througout the upcoming presidential campaign, as both politicians and voters take sides to debate its value, constitutionality, and long-term effects. One issue that does not seem to be in debate, however, is the need to stop Medicare fraud from adversely affecting our elder population and diverting funds from this segment of our population most in need of them. The announcement of these arrests yesterday marks a victory for the fight against Medicare fraud as well as for our elderly population much in need of Medicare's continued financial support.

Website Resource: 91 charged with Medicare fraud across U.S.

Washington Post, Jerry Markon, September 7, 2011

Medicaid fraud investigators filed a civil suit against New York City government this past Tuesday, January 11, 2011. The suit claims that city officials green-lighted round the clock in-home care for thousands of elderly New Yorkers, many of whom were in need of nursing home care. In normal cases, to justify twenty-four hour care, recommendations are required from a patient's doctors and nurses. The suit alleges that in many of the cases in question, this step was overlooked or ignored by the city.

Due to the increased cost for twenty-four hour, in-home care, Medicaid claims that these patients accrued additional costs of millions of dollars, unnecessary spending in its opinion. It will be up to a federal court to decide whether this alleged mishandling of patient appropriation indeed amounts to fraud, or if The City was in fact in the right by approving the in-home care.

Website Resource: As New York City Defends Medicaid Approvals, Fear of Suit's Fallout Grows New York Times, Anemona Hartocollis, January 12, 2011

Angela Zakrzewski, a certified nursing aide at Kaleida Health De Graff Memorial Hospital, a New York nursing home, was recently forced to surrender her C.N.A. certificate after being prosecuted by the Medicaid Fraud Control Unit of the NYS Attorney General's Office. Ms. Zakrzewski performed a one-person transfer of a 91 year-old resident with a mechanical lift (hoyer lift) in violation of the care plan that required a two-person assist. During the transfer, the lift tipped over and injured the resident.

In addition to having to surrender her C.N.A. certificate, Ms Zakrzewski must complete 24 hours of community service. She was also sentenced to a one-year conditional discharge.

The above is a fact pattern commonly seen by New York Nursing Home Abuse Lawyers. The failure of nursing home staff members to properly implement a care plan often results in resident falls and/or fractures.

Website Resource:

Long-Term-Care Community Coalition, Enforcements, Winter 2010.

Christine Butzbach, a former nurse's aide at Medford Multicare Center Medford Butzbach, was recently punished for failing to abide by a care plan for transfers. Ms. Butzbach was reportedly seen bringing a resident and a Hoyer Lift into the resident's room and then exiting the room with the Hoyer Lift. The witness told the resident's wife that she believed Ms. Butzbach transferred the resident using the Hoyer Lift without the assistance of another caregiver as required. Investigation revealed that the defendant had done this on other prior occasions as well and that she signed the resident's accountability record for those dates. Ms. Butzbach later admitted to investigators that she had performed the transfer alone.

After prosecution by the Medicaid Fraud Control Unit of the NYS Attorney General's Office, Ms. Butzbach was sentenced to a one-year Conditional Discharge and 280 hours of community service. Special conditions include surrendering her certification, must refrain from being employed in any capacity taking care of any incompetent person and provide 3 month updates in which she must provide evidence that she is gainfully employed or in school or both.

Website Resource:

Long-Term-Care Community Coalition, Enforcements, Winter 2010.

Nicole Campo, a former Licensed Practical Nurse at Medford Multicare Center in Medford, New York was recently charged criminally for neglecting an elderly resident and falsifying medical records. More specifically, LPN Campo reportedly ignored the repeated call bell of an 82 year old resident. As a result, the resident urinated in her bed and became so frustrated that she got herself into her wheelchair and wheeled herself to the nurse's station, where Campo was standing. Campo blamed a young CNA for the failure to respond to the call bell, and drafted a false statement to the facility during it investigation into the incident. The C.N.A. was subsequently fired. However, the nursing home's security cameras confirmed the resident's version of events and revealed Campo's statement to be false.

As a result of the criminal charges, Campo was sentenced to three years probation with
special conditions that she refrain from employment caring for any incompetent
person (age, physical disability, or mental disease or defect) and required completion of a state-approved substance abuse program.

Website Resource:

Long-Term-Care Community Coalition Report, 3/16/10-6/15/10.

Two employees at Suffolk County, NY nursing home, San Simeon by the Sound Greenport Finley, Donald, were recently sentenced after being charged criminally for abusing and/or neglecting residents. Licensed Practical Nurse, Donald Finley, reportedly failed to administer a medication to one resident, failed to change a bandage for another resident, and failed to perform a blood sugar test for a third resident. Most concerning, Nurse Finley also falsely documented that he did perform the treatments. Nurse Finley was recently sentenced to three years probation supervision with the conditions of probation that he surrender his LPN license and not work in the health care field in any capacity during the three year probation term. He must also submit to psychiatric, drug and alcohol treatment as a condition of probation.

Donna Naeem, a Certified Nurse Aide at San Simeon by the Sound, reportedly punched an 86-year old resident in the head. As a result, she was forced to surrender her CNA certificate, or not renew it, and not seek employment in the health care industry in any capacity.

Website Resource:

Long-Term-Care Community Coalition, 12/16/09 - 3/15/10 Enforcement Report.

A Certified Nurse Aide, Dawn Andrews, was recently sentenced to three years probation and 200 hours of community service for neglecting a New York nursing home resident in in a Clinton County facility. CNA Andrews reportedly left a resident with dementia
alone during toileting in violation of the care plan posted on the resident's door. The
resident fell to the floor and suffered a fractured hip.

This is a common fact pattern in many nursing home neglect cases that involve falls result in fractures. In numerous cases our office has handled, residents have either been left unattended while being toileted or simply ignored and left to attempt to walk from their bed to the bathroom on their own despite being at "high risk" for falls. In many instances the problem stems from understaffing on the part of the operators of the nursing home, and is often not the individual employee's fault. In those scenarios, there are simply not enough employees to ensure the safety of the nursing home residents.

Website Resource:

Long-Term-Care Community Coalition, 12/16/09 - 3/15/10 Enforcement Report.

The Medicaid Fraud Control Unit (MFCU), a task force run by Attorney General Andrew Cuomo, has arrested 22 current and former nursing home employees in two separate cases after footage from hidden surveillance cameras revealed alleged neglect and other conduct that endangered dependent residents. The first case involves the arrest of 14 individuals regarding incidents at Northwoods Rehabilitation and Extended Care Facility in Troy, NY. The second case involves the arrest of 8 individuals regarding incidents at the Williamsville Suburban Nursing Home in Amherst, NY.

Attorney General Cuomo explained, "With the consent of family members, we put hidden cameras in nursing homes across the state, watching over the vulnerable who often cannot advocate for themselves. My office is strongly committed to using all the tools at our disposal to make sure people are getting the medical treatment and the care they deserve."

The hidden cameras at Northwoods Rehabilitation and Extended Care Facility in Troy revealed that staff routinely failed to turn and position an immobile resident, often leaving the resident in the same position for an entire shift over a six-week period. Nursing staff failed to administer medications, as well as treat the resident's bedsores (decubitus ulcers, pressure sores). In addition, the nursing staff member allegedly falsified resident medical records to conceal their neglect. A physician's assistant also created a phony record of an annual medical exam that never happened.

Six Licensed Practical Nurses and seven Certified Nurse Aides were charged with multiple counts of Falsifying Business Records in the First Degree (class E felony) and Willful Violation of the Public Health Law (unclassified misdemeanor) in complaints filed in Schaghticoke Town Court. In addition, the LPNs were charged with multiple counts of Endangering the Welfare of a Physically Disabled Person (class A misdemeanor). The physician's assistant was charged with one count each of the above charges. A class E felony carries a maximum penalty of 4 years in prison and the misdemeanors carry a maximum penalty of one year in jail.

The investigation along with surveillance video taken at Williamsville Suburban Nursing Home in Amherst over a seven-week period revealed that staff routinely failed to properly transfer the resident in and out of bed, putting the resident at risk of injury. Staff was required to use a mechanical lift with the assistance of two caregivers. Video footage also revealed that one aide failed to provide range of motion therapy and two nurses failed to administer insulin, provide skin and wound treatment, and failed to check the resident's vital signs. In addition, the resident's medical records show that employees falsified records to conceal the resident's neglect and endangerment.

Two Licensed Practical Nurses and one Certified Nurse Aide were charged with Falsifying Business Records in the First Degree (class E felony) in complaints filed in Amherst Town Court. The charge carries a maximum penalty of 4 years in prison. Five other Certified Nurse Aides were charged with Endangering the Welfare of an Incompetent or Physically Disabled Person (class A misdemeanor), with a maximum penalty of one year in jail. The Certified Nurse Aide who falsified the resident's medical record failed to perform range of motion exercises on the resident's extremities, which were required to prevent muscle contracture.

Website Resource:

CUOMO'S HIDDEN-CAMERA INVESTIGATION LEADS TO 22 ARRESTS FOR PATIENT NEGLECT AT WNY AND CAPITAL REGION NURSING HOMES, NYS Attorney General, March 31, 2010.