New York Nursing Home Abuse Lawyer Blog

Morningside House Nursing Home in Bronx, NY was fined $55,412.50 as a result of an October 26, 2009 survey conducted by state and federal investigators, according to a Long-Term-Care Community Coalition report. The original fine was 35% higher (approximately $75,000.00), but was reduced when the facility waived its right to a hearing on the issues raised in the survey.

According to the survey findings, Morningside House failed to ensure that an investigation was conducted for a resident sustained a left ankle fracture which was an injury of unknown origin. As a result of no investigation, the facility did not discover the cause of the nursing home injury or put into effect steps to prevent future similar incidents.

The facility failed to ensure that the residents were protected from environmental hazards, specifically, the potential for burns and scalding injuries related to excessive hot water temperature. In addition, the facility failed to maintain water temperature within the acceptable range of 90-120 degrees Fahrenheit. This was evident in 8 community showers and bathrooms and 4 pantry room sinks located in 1 of 2 resident care buildings, which had the potential to affect the 141 residents who are ambulatory and independent, and those requiring toileting assistance.

Morningside House was also cited for failing to ensure that nurse aides are able to demonstrate competency in skills and techniques necessary to care for residents'
needs, as identified through resident assessments, and described in the plan of care.

Morningide House received 36 deficiencies, 7 of which were related to actual harm or immediate jeopardy, the most serious category of deficiencies available to surveyors.

New York nursing homes can find themselves on the Special Focus Facility ("SFF") list if they have: 1) More problems than other nursing homes (about twice the average number of deficiencies), 2) More serious problems than most other nursing homes (including harm or injury experienced by residents), or 3) a pattern of serious problems that has persisted over a long period of time (as measured over the three years before the date the nursing home was first put on the SFF list). Two New York nursing home facilities were added to the Special Focus Facility list due to the severity of quality of care problems found by CMS surveyors:

Loretto Utica Residential
1445 Kemble Street
Utica NY

Northwoods Rehab At Hilltop
1805 Providence Avenue
Niskayuna, NY

Northwoods Rehabilitation has been on the SFF list for over 35 months. Below please find a complete explanation of the Centers for Medicare & Medicaid Services ("CMS") Special Focus Facility Initiative.

Background

CMS and States visit nursing homes on a regular basis to determine if the nursing homes are providing the quality of care that Medicare and Medicaid requires. These "survey" or "inspection" teams will identify deficiencies in the quality of care that is provided. They also identify any deficiencies in meeting CMS safety requirements (such as protection from fire hazards). When deficiencies are identified, we require that the problems be corrected. If serious problems are not corrected, we may terminate the nursing home's participation in Medicare and Medicaid.

Most nursing homes have some deficiencies, with the average being 6-7 deficiencies per survey. Most nursing homes correct their problems within a reasonable period of time. However, we have found that a minority of nursing homes have:

• More problems than other nursing homes (about twice the average number of
deficiencies),
• More serious problems than most other nursing homes (including harm or injury
experienced by residents), and
• A pattern of serious problems that has persisted over a long period of time (as measured over the three years before the date the nursing home was first put on the SFF list).

Although such nursing homes would periodically institute enough improvements in the
presenting problems that they would be in substantial compliance on one survey, significant problems would often re-surface by the time of the next survey. Such facilities with a "yo-yo" or "in and out" compliance history rarely addressed underlying systemic problems that were giving rise to repeated cycles of serious deficiencies. To address this problem CMS created the "Special Focus Facility" (SFF) initiative.

How the Special Focus Facility (SFF) Initiative Works

CMS requires that SFF nursing homes be visited in person by survey teams twice as frequently as other nursing homes (about twice per year). The longer the problems persist, the more stringent we are in the enforcement actions that will be taken. Examples of such enforcement actions are civil monetary penalties ("fines") or termination from Medicare and Medicaid. Within about 18-24 months after a facility is identified by CMS as an SFF nursing home, we expect that there will be one of 3 possible outcomes:

(a) Improvement & Graduation: The nursing home graduates from the SFF program
because it has made significant improvements in quality of care - and those
improvements are continued over time;

(b) Termination from Medicare: The nursing home is terminated from participation in the
Medicare and Medicaid programs. While such a nursing home may continue to operate
(depending on State law), usually it will close once Medicare and Medicaid funding is
discontinued. In such a case the State Medicaid Agency (and others) will assist all
nursing home residents to transition to another residence that can provide a better and
acceptable quality of care. This may include a variety of possibilities, such as another
nursing home, a community-based setting, or apartment with good support services.

(c) Extension of Time: The nursing home is provided with some additional time to continue in the SFF program because there has been very promising progress, such as the sale of the nursing home to another owner with a much better track record of providing quality care.

Website Resources:

CMS Special Focus Facility Ceritification and Compliance, 2010.

Elant at Brandywine, a Westchester County nursing home in Briarcliff, New York was recently fined $38,150 by the U.S. Federal Government based on findings of substandard care made by surveyors during a September 2, 2009 investigation. According to the inspection report, surveyors cited the facility for failing have systems in place to adequately monitor and prevent residents with cognitive impairment and/or unsafe wandering or elopement behaviors from exiting the facility undetected.

The surveyors uncovered that a cognitively impaired resident who had eloped from the facility 2 days prior, eloped again during the night, and was found approximately 3 ½ hours later more than 3 miles from the facility by a staff member on her way to work. The staff had not placed a Wanderguard, a monitoring device, on the resident as would have been appropriate given her medical history. Elant at Brandywine received an immediate jeopardy citation, the most serious classification, as a result of this incident.

Elopement occurs when a nursing home resident, usually a resident with Alzheimer's or dementia, is allowed to exit the facility without supervision. Elopement of cognitively impaired nursing home residents can result in falls, fractures, brain injuries, hypothermia or heat stroke.

Website Resources:

New York State Dept. of Health, Elant at Brandywine, September 2, 2009 Survey.
Long-Term-Care Community Coalition, 9/09-12/09 NY Enforcement Action Report.

New Rochelle, New York nursing home, Sutton Park Center For Nursing and Rehabilitation, was fined $32,630 based on findings from a June 18, 2009 NYS Department of Health survey, according to the Long-Term-Care Community Coalition's spring 2010 newsletter. According to the NYS surveyors, the nursing facility failed to provide necessary care and services that meet acceptable standards of clinical practice.

The facility failed to ensure staff members were knowledgeable of resident's advance directives and knowledgeable of the facility's cardiopulmonary resuscitation (CPR) procedure. The administration of the home failed to develop and implement effective policies and procedures for responding to emergent situations. Sutton Park reportedly had three different policies and procedures for CPR.

Additionally, the facility failed to ensure that adequate CPR trained staff were present on all shifts. More specifically, a staff member failed to provide CPR when a resident was found unresponsive and identified by the LPN with advance directives for resuscitation.

The Long-Term-Care Community Coalition's Spring 2010 report on nursing home enforcement actions was recently released. According to the report, the following New York nursing homes were sanctioned by the federal government for failing to comply with quality care requirements. The amount of the civil money penalties, as well as the date of the inspection that lead to the punishment are also listed below. We will discuss some of the specific incidents of nursing home neglect and abuse that resulted in the penalties in later posts.

Adirondack Medical Center-Mercy Tupperlake 10/1/09 $2,600

Central Park Rehabilitation and Nursing Center Syracuse 5/26/09 $3,750

Chase Memorial Nursing Home New Berlin 7/29/09 $7,450

Countryside Care Center Delhi 8/20/09 $28,695

Dumont Masonic Home New Rochelle 7/16/09 $6,500

Elant at Brandywine, Inc. Briarcliff Manor 9/2/09 $38,150

Franklin County Nursing Home Malone 6/26/09 $3,250

The Hamptons Center for Rehabilitation and Nursing Southampton 9/16/09 $6,500

Jewish Home and Hospital Bronx Division Bronx 6/23/09 $39,260

John J. Foley Skilled Nursing Facility Yaphank 5/6/09 $29,997.50

Loretto-Oswego Health and Rehabilitation Center Oswego 5/11/09 $19,110

Loretto Utica Residential Health Care Facility Utica 4/6/09 $3,575

NYS Veterans Home at St. Albans Queens 6/29/09 $50,175

Northwoods Rehabilitation and ECF-Hilltop Niskayuna 7/1/09 $46,800

Ontario County Health Facility Canandaigua 6/1/09 $4,550

Rosewood Heights Health Center Syracuse 5/6/09 $5,500

Sutton Park Center for Nursing and Rehabilitation New Rochelle 6/18/09 $32,630

TLC Health Network Lake Shore Hospital Nursing Facility Irving 7/22/09 $1,625

Wellsville Manor Care Center Wellsville 8/6/09 $4,550

Westmount Health Facility Queensbury 5/14/09 $31,297.50

In an effort to improve response time in investigating nursing home complaints, the Texas Department of Aging and Disability Services has created teams tasked only with looking into those claims. Based on Texas statistics, only about 35 percent of complaints categorized as having a "high potential of harm" were investigated within the required 14-day window over the past few years.

Chris Traylor, the department's new commissioner, has made to improved response times a priority. Traylor explains, "While we're doing a good job responding to the most serious complaints and incidents, I'm concerned about our ability to respond quickly to every complaint and incident. We need to do all we can to ensure the safety of Texans in nursing homes."

In February, the department says they plan on investigating more that 1,500 complaints at 330 facilities.

Website Resource:

State creating teams to investigate complaints about nursing homes, Ft. Worth Star Telegram, Darren BarbeeFebruary 15, 2010.

New York State Veterans Home in Queens (NYC) received immediate jeopardy deficiencies (immediate jeopardy are the most severe) resulting from incidents of substandard quality of care for failing to keep the facility free from accident hazards, and for failing to implement policies and procedures related to resident smoking practices. These findings were part of a June 29, 2009 NYS Department of Health survey.

The surveyors found that the Queens nursing home staff and administration failed to implement appropriate policies and procedures related to resident smoking practices; failed to adequately assess/reassess the residents smoking abilities and update care plans; failed to provide supervision for residents who smoke in the designated smoking areas; failed to ensure that the residents were utilizing the appropriate receptacle to extinguish cigarettes/smoking materials; and failed to ensure that the designated smoking area was maintained free of litter of cigarettes butts.

As a result of the deficiencies, New York State took the following action according to a Long-Term Community Care Coalition report:

1) Civil Money Penalty: State recommends to CMS;
2) State Monitoring: state sends in a monitor to oversee correction;
3) Directed Plan Of Correction (DPOC): A plan that is developed by the State or the Federal regional office to require a facility to take action within specified timeframes. In New York State the facility is directed to analyze the reasons for the deficiencies and identify steps to correct the problems and ways to measure whether its efforts are successful;
4) In-Service Training: State directs in-service training for staff; the facility needs to go outside for help; and
5) Denial of Payments for New Admissions (DoPNA): Facility will not be paid for any new Medicare or Medicaid residents until correction is in place.

Four additional employees at a Long Island, NY nursing home, Medford Multicare Center, have been arrested and charged with endangering the welfare of a patient and falsifying business records in order to conceal neglect. Two of the arrests were made as part of the New York State Attorney General's ongoing use of hidden cameras.

Attorney General Cuomo stated, "Today's arrests highlight this office's ongoing effort to investigate and prosecute individuals who shamelessly mistreat Long Island's most vulnerable patients. My office will continue to use innovative techniques, including surveillance cameras, to expose and bring to justice anyone jeopardizing those who cannot care for themselves. Let me be clear that this is an ongoing, expanding investigation and the charges brought today underscore my commitment to protect elderly patients at nursing homes across the state."

LPN Janet Coleman, 49, of Moriches, New York, allegedly, among other instances of neglect, allegedly falsified medical records to conceal the fact that she failed to provide treatment to a resident's gastrostomy tube site. CNA, Marie Pierre, 35, of Elmont, New York, allegedly failed to perform Range of Motion exercises on a resident to prevent his muscles from contracting; failed to turn and position a resident to prevent skin breakdown and pressure ulcers (bedsores, decubitis ulcers); and failed to change a resident every two hours.

Another CNA, Paulette George, allegedly failed to bathe a resident for weeks and falsified records to indicate that the resident had been showered. LPN Kim Purdum, 36, of South Beach, New York, allegedly falsified a resident's chart to conceal that she had not performed necessary blood tests to monitor dosage of Coumadin, a blood thinning medication. The lack of this routine testing and monitoring resulted in the resident suffering internal bleeding and extensive external bruising.

Website Resources:

New York State Attorney General, Cuomo's Hidden-Camera Investigation Nets More Employees of Medford Multicare Center for Endangering Patients and Falsifying Records to Conceal Neglect, October 30, 2009.

Continue reading "NY Elder Abuse: Attorney General Uses Hidden Cameras To Bring Charges Against Four Long Island (NY) Nursing Home Employees" »

Terrace Health Care Center, a Bronx (NYC) nursing home, was cited in a May 27, 2008 survey for failing to supervise and monitor a resident who was able to elope from the facility for a twelve and half hour period without being noted as missing. The resident had a history of illicit drug use and had previously requested a five hour pass numerous times. The resident was not noted as missing at any of his meals, rehabilitation sessions, medication distribtion, or on any rounds made by nursing staff.

The resident had not been assessed for his propensity to elope and no care plan had been implemented in order to prevent him from eloping. Even more startling, investigators interviewed the Director of Nursing, Assistant Director of Nursing, MDS Coordinator, Quality Assurance Manager, and Assistant Administrator as a group, and when they were asked how residents are assessed for elopement, no one could provide a response. Furthermore, the surveyor was provided a Policy and Procedure titled "Criteria For Risk Assessment 'Wandering' or 'Elopement' and the Care Plan Process" dated 5/19/08. There form had no initial date or revision date posted on it. The incident in question occurred on 5/14/09, five days before the initiation of the policy.

As a result of the investigation, the surveyors found that the facility failed to have a system in place to assess all residents for risk of elopement, which resulted in Immediate Jeopardy and Substandard Quality of Care to Residents. The Bronx nursing home was fined $8,000.00.

Failing to properly assess residents for their risk of wandering or eloping can lead to serious injuries, and is a form of nursing home neglect. Please contact Gallivan & Gallivan for a free consultation regarding your potential nursing home neglect or abuse matter.

93 year-old nursing home resident, Charles Bradley, was allegedly the victim of neglect at Everett Care & Rehabilitation in the winter of 2004. A lawsuit initiated by Bradley's family claims that staff at the nursing home failed to refer the resident to a physician when an open wound was found on his penis. According to the family, the wound was then allowed to fester for months without treatment. That wound had apparently developed as a result of an undiagnosed penile cancer. The cancer reportedly contributed to Mr. Bradley's death.

The nursing home has been cited by the Seattle Department of Health and Social Services as a result of the incident.

As always, the attorneys at Gallivan & Gallivan are available for a free consultation if you have any questions or concerns regarding the abuse or neglect of a nursing home resident.

Website Resources: Nursing home cited, sued after elderly man's genitals disintegrate, Seattle PI, LEVI PULKKINEN, October 16, 2009.

Waterview Nursing Home in Queens, New York has been fined $30,582.50 stemming from findings of a September 25, 2008 inspection conducted by state and federal surveyors. The survey findings indicate that the facility failed to supervise resident smokers. The facility also failed to reevaluate the resident smokers in order to determine whether they had the ability to smoke in a safe manner.

The facility was cited for violating 42 CFR §483.25(h), which requires nursing home facilities to ensure that the resident environment remains as free of accident hazards as is possible; and each resident receives adequate supervision and assistance devices to prevent accidents.

The surveyors found that 20 of the 21 residents sampled were not properly supervised by nursing home staff. Many residents had burn holes in their clothing and additional residents were witnessed dropping ashes on the floor near paper products. As a result, the facility was cited for providing substandard care and placing the residents (not to mention other building occupants) in immediate danger.

An Orange County, NY nursing home, The Elant at Newburgh, received a citation for an incident that caused "actual harm" or placed residents in "immediate jeopardy." The details regarding the incident are not currently available, but the citation was confirmed by a statement released by the facility. Apparently the incident was investigated by state and federal regulators as part of the nursing home's yearly survey. The report is expected to be made public within the next 10 days. An "actual harm or immediate jeopardy" finding is the most severe citation nursing homes can receive.

A former employee who worked in management at the nursing home spoke to the Times-Herald Record on a condition of anonymity. He/she indicated that the citation resulted from decisions made by top management to allocate funds to acquire additional nursing homes that should have been allocated to hiring additional nurses and nurses's aides to ensure the facility was properly staffed. Unfortunately, this type of decision-making is not uncommon and is a clear demonstration of management putting "profits over people."

The New York Nursing Home Abuse Lawyer Blog will provide details regarding the incident once the survey report is made public.

Gallivan & Gallivan, Attorneys at Law, provides compassionate and aggressive representation for those who have been injured as a result of short-staffing at nursing homes. Please contact us if you or a loved one has suffered due to a nursing home's decision to put "profits over people."

Website Resources:

UPDATED: Elant at Newburgh cited for 'actual harm or immediate jeopardy', Times-Herald Record, Christian Livermore, September 3, 2009.

The Long-Term Care Community Coalition provided me with an updated list of nursing homes, including NY nursing homes, that have been identified as Special Focus Facilities (SFFs) by the Centers for Medicare and Medicaid Services (CMS). The Special Focus Facility program identifies facilities that have exhibited 1) a pattern of quality care problems, 2) more serious problems (harm or injury to residents) in comparison with other nursing homes, and/or 3) a larger quantity of deficiencies in comparison with other nursing homes. The SFF program then assists these facilities in trying to remedy their existing problems. If the facility fails to correct the problems, Medicare/Medicaid stop reimbursing them.

The SFF program divides the facilities into five categories:

1) Facilities recently added to SFF;
2) Facilities that have "improved" after being placed on the list;
3) Facilties that have "graduated" from the program (faciltiies graduate if they achieve "sustained significant improvement" over a 12 month period);
4) Facilities that have NOT improved despite participation in the program; and
5) Facilties terminated (no longer receiving Medicare/Medicaid reimbursements - as a practical matter, most of the facilties in this category have closed).

Mercy of Northern New York in Watertown, NY was recently named a Special Focus Facility, and two New York nursing homes, Central Park Rehabilitation & Nursing and Northwoods Rehabilitation at Hilltop, were found NOT to have improved after being identified as a problem facility.

Attorneys at Gallivan & Gallivan represent nursing home residents that have been neglected or abused. Nursing Home Neglect can include falls, pressure sores (Bedsores, decubiti), malnutrition and dehydration, choking incdents and/or weight loss.

New York Public Health Law § 2801-d provides a private statutory cause of action for residents of nursing homes injured as a result of any deprivation of certain "resident's rights" that cause an injury. This private right of action is cumulative and separate from any other plausible causes of action, such as medical malpractice and/or negligence. In pertinent part, the statute provides:

"Any residential health care facility that deprives any patient of said facility of any right or benefit, as hereinafter defined, shall be liable to said patient for injuries suffered as a result of said deprivation...

For purposes of this section, a 'right or benefit' of a patient of a residential health care facility shall mean any right created or established for the well-being of the patient by the terms of any contract, by any state statute, code, rule or regulation or by any applicable federal statute, code, rule or regulation."

Numerous statutes, codes and rules and regulations have been established by New York and the federal government that create a "right or benefit" established for the "well-being" of nursing home residents as referenced in Section 2801-d, including New York Public Health Law Section 2803-c, New York Compilation of Codes, Rules & Regulations Section 415, and 42 CFR Section 483.

New York Public Health Law Section 2803-c outlines the "rights of patients" in New York nursing homes. Section 415 of the N.Y. Compilation of Codes, Rules & Regulations enacts a code of minimum standards for nursing homes requiring that staff provide care within accepted professional standards. 42 C.F.R. § 483.1 is a federal regulation that provides minimum standards for nursing homes addressing all aspects of nursing home resident care including quality of life, quality of care, nursing, physician, dietary and other necessary services.

In order to obtain damages under section 2801-d, plaintiffs must prove that the nursing home's deprivation of a "right or benefit" caused the injury claimed. Punitive damages and attorney's fees may also be awarded under the statute.

The attorneys at Gallivan & Gallivan concentrate on representing clients who have claims under the New York Public Health Law Section 2801-d. If you or a loved one has been the victim of abuse in a nursing home, developed pressure sores (bedsores, decubiti), fallen, or become dehydrated/malnourished as a result of a nursing home's neglect, please contact us.

The Crossings, a New York nursing home, was fined $13,300 by the federal government as a result of an incident involving a choking resident. The resident was fed pancakes and sausages, both of which were cut into tiny pieces. Soon thereafter, a nurse's aide noticed the resident was not breathing and that the resident's lips had turned blue. However, the nurse's aide neglected to call a "code blue", call 911, and/or perform the Heimlich maneuver. A licensed practical nurse and a registered nurse who appeared on the scene a few moments later also failed to call 911 or a "code blue" immediately. As a result, the resident went into cardiac arrest and died at a nearby hospital.

The Crossings was cited for failing to appropriately train its employees regarding "code" situations, as well as providing care that did not meet minimum professional standards. If you or a loved one has been the victim of a choking incident that was not handled appropriately, please contact the New York Nursing Home Neglect Attorneys at Gallivan & Gallivan.

Website Resources:

Nursing home fined $13,300 - Agency says The Crossings didn't give proper care to choking resident who died, The Post-Standard, James T. Mulder, November 19, 2008.