New York Nursing Home Abuse Lawyer Blog

A study recently released by the Department of Health and Human Services reports that as few as one out of seven Medicare patients harmed by medical errors and accidents during hospitalizations are reported. The study, performed by HHS inspector general Daniel R. Levinson, claims that the primary cause of the under-reporting is that many hospital employees do not understand what would be defined as "patient harm", or these employees do not appreciate that a patient has been harmed. In an effort to correct this, Medicare has stated that it will devise a list of "reportable events," which will be available to hospitals and their employees.

In order to receive payment from Medicare, hospitals are required to report incidents of harm to patients, and make efforts to improve care and eliminate similar events in the future. Even with this stipulation, failure to report errors has been rampant, according to the study's findings. Additionally, Levinson found that even when incidents of harm are reported, such as bedsores, infections or medication errors, hospitals rarely make changes to policies or practices.

The Obama Administration, although it has strongly advocated the reduction of medical errors, has left the power to change this with the states. Additional federal reporting requirements are not being planned at this time.

Website Resource: Report Finds Most Errors at Hospitals Go Unreported, New York TImes, Robert Pear, January 6, 2012

Northern Riverview Health Care Center in Haverstraw, NY was cited in a Department of Health Deficiency Survey dated May 11, 2011. The DOH cited the facility for numerous violations, including failing to ensure that the facility was free of accident hazards, and failure to develop and implement written policies and procedures that prohibit mistreatment and/or neglect.

The Statement of Deficiencies documented incidents involving falls of five residents, with the falls resulting in actual harm to each. In one such incident, a resident was admitted with diagnoses including dementia and ataxia (unsteady gait). The care plan in place for this resident stated that an alarm was to be in use on his wheelchair at all times when the resident was out of bed. Despite this, the resident was discovered on the floor on the evening of February 20th, and it was discovered that an monitoring device was not in place, contrary to care plan specifications. Subsequent to the fall, the facility did not conduct a complete investigation. Additionally, no new interventions were put in place to prevent a repeat incident. As a result, the resident suffered another fall on April 20th while in the dining room, after which the assistant director of nursing stated that, again, a wheelchair monitor was not in place.

Nursing home facilities must ensure that residents receive proper supervision and assistive devices to prevent accidents. Such steps clearly were not taken in the case of this resident. After the initial fall, the facility should have ensured, at the very least, that the original care plan was followed. Despite the actual notice provided of his risk for falls after the first incident, no steps were taken to prevent additional accidents.

As stated above, the facility was also cited for failure to prevent abuse or neglect. This failure was evident for six residents out of a sample of 17. Among the indignities suffered by these residents were: corporal punishment that went without investigation (slaps about the face and head administered by the resident's son; a bruise of unknown origin to a resident's hip (this too was not investigated); and failure to implement proper alarm interventions for a resident known to be a fall risk.

A facility implements a care plan because the staff recognizes a risk of harm or injury due to the patient's physical or mental state. The plan is meant to limit further injury, or help to heal a current condition. The care plan has no effect if it is not implemented, however. In many of the incidents documented in the DOH survey, Northern Riverview recognized a risk, but failed to follow through on its own directives to minimize the risk. These failures resulted in the accidents and injuries above. The full reports, including additional citations and incidents, can be found here.

A July 27, 2011 DOH Deficiency Survey cited Long Island nursing home Berkshire Nursing and Rehabilitation Center for several shortcomings. Among these deficiencies, the DOH noted a failure to ensure that a resident's drug regimen was free from unnecessary drugs, a violation of Title 42 section 483.25(l) of the CFR.

In this specific case, the DOH discovered that a resident had been prescribed several psychoactive medications. As this resident had been diagnosed with dementia and depression, these prescriptions alone are not abnormal. Prior to prescribing the medications, however, the facility did not properly assess the resident and failed to weigh the potential benefits of alternative treatment. According to the Code, the facility must ensure that residents who have not used antipsychotic drugs in the past are not given them, unless such drugs are necessary to treat a specific condition as documented in the patient's record. Additionally, according to the surveyors, the facility failed to monitor the effectiveness of the medications once they were prescribed.

Other deficiencies documented in this report, such as failure to develop and implement proper care plans and failure to create an activity program meeting individual needs, are in the full DOH report here.

Hilaire Rehab & Nursing, a Suffolk County-based nursing home, failed to meet minimum standards of care in several areas, according to a DOH survey dated June 14, 2011. The DOH gave the facility a one star (out of five possible stars) due to the prevalence of residents with bedsores (pressure ulcers, decubitus ulcers). 21% of residents found to be at "high risk" for developing bedsores had in fact developed a bedsore (the national average in the category is 12%). Among the deficiencies noted was the failure to ensure that the facility remained free of accident hazards and failure to ensure that services are provided by qualified persons in accordance with the care plan.

Title 42 section 483.25(h) of the CFR dictates that a resident must be supervised and provided with assistance devices to prevent accidents. The DOH report details a resident with a history of wandering and barricading herself in her room. Despite this history of barricading, no intervention was in place to prevent the behavior other than 15 minute room checks. As a result, the resident successfully barricaded herself in her room on no fewer than two occasions. The resident, who had a history of dementia and psychotic disorder, also had a roommate. Because of the barricade, the room was not immediately accessible. This could have led to a serious situation/injury had the resident attempted to cause harm either to herself or her roommate. This behavior should have been noted and accounted for in the comprehensive care plan, however it was not, leading to the deficiency rating.

The second deficiency noted above is in violation of section 483.20(k)(3)(ii) of the Code. In this instance, a physician ordered an antibiotic to treat a resident's urinary tract infection, however the medicine was not administered until three days later. The pharmacist stated that the medication was delivered to the home the day following the order. The Director of Nursing conceded that it should not have taken three days to begin administration of the prescription, but little other explanation was given for the delay. Many elderly residents at nursing homes often have numerous prescriptions to take on a daily basis. The staff must ensure that these medications are administered properly. The delay in providing this resident with his or her UTI prescription led to additional pain and discomfort for the resident, and could have resulted in sepsis.

A complete list of Hilaire's deficiencies can be found here on the New York DOH website.

The New York State Department of Health published results of a survey dated June 13, 2011 in which Cedar Lodge Nursing Home, located in Center Moriches in Suffolk County, received substandard results in several areas. Sections 483.75(l)(3) and 483.20(f)(5) of CFR Title 42 discuss standards for record keeping and maintenance. The importance of safeguarding records is further evidenced not just in the codification, but also through the process one must navigate to obtain patient records.

The Health Insurance Portability and Accountability Act (HIPAA) ensures that only an individual or his or her authorized representative is able to gain access to private medical records. In the deficiency report, the DOH noted that personal medical records were being stored at Cedar Lodge in an open area of the basement. The file cabinets and boxes storing the records were not properly locked or secured.The area of the basement housing the records was accessible to maintenance and housekeeping departments. The report did not mention if the records were accessed by unauthorized personnel, but that the files were accessible.

Additional deficiencies in areas such as dietary services, proficiency of nurses aides, and unnecessary use of restraints can be read about on the DOH website.

Momentum at South Bay, the East Islip based nursing home, was cited in a New York Department of Health deficiency report dated June 20, 2011. The report details numerous citations and violations of policy by the Suffolk County nursing home. The facility was cited for 27 standard health deficiencies. The New York State average number of standard health deficiencies was 17.

Listed first in the report is a violation of 42 CFR 483.20(g)-(j). These sections mandate an accurate assessment of the resident's status, as well as coordination between nurses and health professionals, and certification of the assessments when complete.The report states that according to the facility's Minimum Data Set, "Resident 13" was on a physician-prescribed weight loss program. Documentation of the physician orders contradicted this MDS, however, as there were no physicians orders for weight loss. Ordering a manageable diet in elderly and infirm residents in a nursing home is the responsibility of a physician and/oror dietician. Because these residents must maintain very specific nutritional requirements, a nurse or nurse's aide cannot take it upon him or herself to adjust the diet of a resident. Unfortunately, it appears from the report that this is what occurred at Momentum at South Bay.

A second deficiency noted in the report is a failure to establish an infection control program. This was noted during an unsanitary cleansing of a sacral pressure ulcer. A nurse did not employ adequate sanitation measures while cleansing the ulcer. According to federal regulation, a facility must maintain a program designed to prevent the development and transmission of disease and infection. When dealing with pressure ulcers, this is even more essential than normal. Because they are open wounds, pressure ulcers have a predisposition to infection. Failure to perform any and all necessary sanitation precautions prior to cleansing the wound or changing dressings may lead to an increased risk of infection, or the exacerbation of an infection already present. This in turn may lead to further infection, sepsis, and death.

The above are only two of the deficiencies noted by the DOH in its report. Click here to access its findings in their entirety.

Bellhaven Center for Rehabilitation and Nursing Care in Brookhaven, New York was found deficient by the DOH in a number of areas, according to a survey of August 8, 2011. The areas receiving less than adequate marks were clinical record keeping, accident reporting, proficiency of nurses aides, and avoidance of unnecessary catheterization.

As is often the case in these DOH deficiency reports, the study references Title 42 of the CFR. Section 483.75(l)(1) states that the facility must maintain complete clinical records for each patient, in accordance with accepted professional standards and practices. The study details two incidents at Bellhaven in which physicians ordered medication for residents, however there was no documentation that the medications were actually administered to the patients. Proper record taking is essential to the safety and well-being of nursing home residents. Quite often, a resident is unable to communicate accurately with a member of the staff. Failing to document what type of medication is administered to a patient, as well as when and where such medication was administered can lead not only to sloppy records, but sickness or death for the patient.

Section 483.10(b)(11) of the Code makes clear that: "[A] facility must immediately inform the resident; consult with the resident's physician; and if known, notify the resident's legal representative or an interested family member when there is an accident involving the resident which results in injury and has the potential for requiring physician intervention." In the incident cited by the report, a resident was scheduled for a dermatology appointment. Not only was the resident's family not informed of this appointment, the resident herself was never picked up to attend the appointment. The patient was not told why the appointment was missed.

In most, if not all cases, an individual is placed in a nursing home because he or she no longer has the full ability to care for him or herself. In such cases, it is a necessity to maintain open and clear lines of communication both internally within the facility and externally to family members or legal guardians. Failure to do so is unacceptable, and can lead to dire consequences for the most vulnerable member of the equation: the patient.

The entire DOH report can be found here.

In a certification survey from January of this year, the Department of Health cited Suffolk Center for Nursing and Rehab, a Patchogue, New York nursing home, for multiple deficiencies. Included in the DOH report were lack of proficiency of nurse's aides, and failure to ensure that residents are free from medication errors.

The survey found the facility deficient with respect to Title 42 Section 483.75(f) of the Code of Federal Regulations, Proficiency of Nurse's Aides, when it was discovered that a resident with a known history of falls was left alone in and around the shower. Fortunately, the resident did not fall on this occasion. However, the CNA admitted that he was aware of the resident's fall history and still left him alone in order to get supplies. A resident with a history of falls should never be left alone while mobile, particularly in an area as precarious as a bathroom or shower. Clearly this behavior by the CNA showed a lack of competency in caring for such a patient.

Section 483.25(m)(2) of the Code mandates that the facility must ensure that residents are free of any significant medication errors. In the incident documented in the report, medications were not received as ordered, and in one case the facility did not ensure that the resident actually took her medication. In an environment in which residents are on a very strict regimen of medication, coupled with the fact that many residents are unable to care for themselves, this behavior on the part of the facility is unacceptable. As the survey notes, instances such as this have the potential for more than minimal harm.

The entire list of deficiencies is too numerous for a single entry. A copy of the Detailed Deficiency Report can be found at the DOH website, here.

Three employees at a Havertown, PA senior living facility were arrested recently and charged with assault and harassment stemming from their treatment of a 79 year old resident of the home. Evidence of the alleged abuse came to light after the resident's daughter placed a "nanny cam" in her room. The resident had previously complained to her daughter that staff at the facility were abusing her.

In addition to the criminal charges faced by the three workers, the family has sued the facility for negligence. In the suit, the family alleges that the facility was understaffed, the existing staff was improperly trained, and that the facility violated regulations for the proper maintenance of a senior living facility.

Website Resource: Delco couple sue senior living facility after alleged abuse caught on tape

Philadelphia Inquirer, John P. Martin, October 13, 2011

The Long-Term-Care Community Coalition's Fall 2011 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 have discussed some of the specific incidents of nursing home neglect and abuse that resulted in the penalties in previous posts.

Absolute Center For Nursing and Rehab, Endicott, 7/22/09, $2,000

Bishop Henry B Hucles Episcopal Nursing Home Brooklyn 11/30/09 $12,000

Brooklyn United Methodist Church Home Brooklyn 3/8/10 $22,000

Chataugua County Home Dunkirk 1/6/09 $10,000

Elant at Newburgh Inc. Newburgh 9/2/09 $72,000

Franklin County Nursing Home Malone 6/26/09 $8,000

Grandell Rehab and Nursing Center Long Beach 7/29/10 & 1/26/10 $34,000

Guilderland Center Nursing Home Guilderland Center 9/10/09 $10,000

The Hamptons Center for Rehab and Nursing Southampton 7/30/10 $10,000

Jewish Home and Hospital-Bronx Bronx 6/23/09 $6,000

Medford Multicare Center for Living Medford 3/17/10 $10,000

Medford Multicare Center for Living Medford 4/1/09 $12,000

Mount Loretto Nursing Home Inc. Amsterdam 7/6/10 $10,000

Northern Riverview Health Care Center, Inc Haverstraw 4/8/10 $24,000

Petite Fleur Nursing Home Sayville 4/9/10 $10,000

St. Johns Health Care Corporation Rochester 9/27/10 $10,000

Sullivan County Adult Care Center Liberty 4/16/09 $10,000

Summit Park Nursing Care Center Pomana 12/4/09 $10,000

Sutton Park Center for Nursing and Rehab New Rochelle 6/18/09 $4,000

Sutton Park Center for Nursing and Rehab New Rochelle 1/19/10 $10,000

Van Duyn Home and Hospital Syracuse 11/13/08 $2,000

Wayne Health Care Newark 7/9/10 $2,000

Westmount Health Facility Queensbury 2/25/10 $2,000

Wyoming County Community Hospital SNF Warsaw 3/19/09 $10,000

Northern Riverview Health Care Center, Inc. in Rockland County, NY was fined $24,000 as a result of a Department of Health Certification Survey dated April 8, 2010. The survey noted no less than 14 deficiencies that contributed to the substantial fine.

Among the shortcomings noted by the surveyors were failures with respect to comprehensive care plans (a repeat deficiency for Northern Riverview), the failure to keep the facility free of accidents hazards, and failure to take proper measures to treat and prevent/heal pressure sores.

A facility must develop, review, and revise a comprehensive care plan for each resident. With respect to two patients, Northern Riverview failed to do this according to the DOH. In one case, the patient did not have a care plan in place for dehydration treatment, despite the fact that the patient was being monitored for dehdration. In the second instance, a patient had no care plan for limited functionality in her left hand, although it was observed that the resident was unable to unclench that hand.

A facility must also ensure that the resident environment remains as free from accident hazards as possible. On March 22 of last year, a resident eloped from Northern Riverview. The resident had been diagnosed previously with both Alzheimer's Disease and Depressive Disorder. Needless to say, the potential dangers of an elderly resident leaving a facility unattended are amplified when additional diagnoses such as Alzheimer's and depression are added to the situation. Fortunately, in this instance the resident was returned to Northern Riverview unharmed. However, without diligent checks on residents with the potential to wander, occurrences such as this could lead to much more serious consequences in the future.

As this blog has discussed frequently, a facility is required to ensure that a resident who enters a facility without pressure sores does not develop them unless the sores are clinically unavoidable, and a resident with pressure sores receives the necessary treatment to promote healing, prevent infection, and prevent new sores from developing. In the DOH report, it is noted that a resident, although noted to be at moderate risk for the development of pressure sores, still developed several pressure ulcers between Stages II and IV. Although the patient's care plan called for turning and positioning every two hours, it is not noted in the nursing notes that this was performed consistently. Additionally, the survey details departure from protocal while cleaning and dressing the wounds, such as a failures by LPN's to wash hands during the process and placing an undressed wound directly on bed linens. In limited instances, skin breakdown in an elderly person is an unavoidable side effect of underlying disease processes. Failing to take all necessary steps to avoid this breakdown is certainly avoidable, however, as is failing to properly clean and dress wounds.

Documentation of Northern Riverview's fine can be found here. The full DOH survey results are linked below.

Website Resource: Northern Riverview Health Care Center, Inc.

We have discussed the Orange County, NY nursing home Elant at Newburg several times on this blog. The Fall 2011 Long Term Community Care Coalition Newsletter documents a $72,000 fine levied against the facility resulting from a September 2, 2009 Department of Health survey.

Many of the deficiencies chronicled in the report will not be unfamiliar to readers of this blog: 483.75(f)--Proficiency of Nurse Aides; 483.25(c)--Proper Treatment to Prevent/Heal Pressure Sores; 483.13(c)--Facility Prohibits Abuse, Neglect; and so on. The deficiency discussed below, however, illustrates problems that exist as high up as the management level.

Title 42 Section 483.75(i) of the Code of Federal Regulations states that "(1) The facility must designate a physician to serve as medical director. (2) The medical director is responsible for (a) [I]mplementation of resident care policies; and (b) [T]he coordination of medical care in the facility." The report, linked below, states that the Medical Director at Elant is the sole treating physician in the entire facility, thus the MD by default. The report also illustrates a lack of fundamental knowledge on the part of the MD with respect to diagnosis and treatment of pressure sores, as well as state and federal regulations regarding the same. There are 178 residents of Elant at Newburg; the MD is responsible for the medical treatment of each one.

Expecting a single physician to care for and treat close to two hundred residents is a lofty goal. Asking that physician to be knowledgeable about one of the most widespread health issues facing her residents is not, however. Perhaps the repeated individual deficiences documented by the DOH at Elant at Newburg are represenatative of deficiences at the top of the organizational structure. Regardless of the cause, it is evident that a shift in culture is necessary at Elant to stem what seems to be an incessant tide of deficiencies and failures.

Website Resource: Elant at Newburgh, Inc

Grandell Rehabilitation and Nursing in Long Beach, New York was fined for several deficiencies after surveys taken in January and July of last year. Among the numerous violations found during the survey were:

• CFR 483.7(h)(3) Corridors have firmly secured handrails. The study found that not only did the facility lack the requisite number of handrails, but also not all handrails were securely fastened in place. Due to a propensity for falls by residents of nursing homes, and for increased damage to an elderly resident who suffers a fall, securely fastened handrails are an absolute necessity in elder care facilities. A fall can lead to injuries such as bruising and bone fractures. Additionally, the long term reduced mobility resulting from a fall can lead to advanced medical issues, such as bedsores (pressure sores / decubitis ulcers) for an elderly resident. The effects, both direct and indirect, of a fall can be deadly for an elderly nursing home resident. All precautions must be taken to ensure that avoidable falls are, in fact, avoided.

• CFR 483.65 Facility Establishes Infection Control Program. An infection in an elderly patient can have dire consequences. As such, all necessary precautions must be taken by resident facilities to avoid preventable infections. Instances such as failure to wash hands before administering medicine, failure to replace a visibly soiled cervical collar, and failure to employ sanitary methods of taking blood (all noted in the deficiency report) can each lead to an infection. Simple precautions like these, which an individual would almost certainly take if administering medicine or taking blood from him or herself, were not taken on several occassions during the period of time monitored by the survey.

As mentioned above, there were numerous additional violations found in the DOH survey. These can be found in the link to the site below. According to the Long-Term-Care Community Coalition, Grandell was fined $34,000 as a result of the deficiencies noted in the surveys.

Website Resource: New York State Department of Health

Late last week, the New York State Department of Health discontinued Soundview's participation in the state's Medicaid program. Citing lack of a Medicaid Compliance Plan on the part of Soundview, the DOH has removed the home from Medicaid participation effective September 12th of this year. The Department acted upon recommendation by the Office of the Medical Inspector General, which noted lack of compliance with state Medicaid regulations and shortcomings within the home's operations.

Soundview residents receiving Medicaid benefits will not be denied access to medical care. The DOH ruling does not immediately impact those residents receiving aid from Medicare or private insurance.

Title 18 Section 521.3(a) of the New York Administrative Code states that all providers "shall adopt and implement an effective compliance program." Such compliance programs are applicable to billing, payments, and mandatory reporting, among other operational aspects of healthcare providers. Based on the findings of the OMIG, the Department of Health found this compliance lacking in the case of Soundview, and thus stripped it of its Medicaid eligibility.

Website Resource: New York State Department of Health

A deficiency report published by the Department of Health on April 25, 2011 reveals that Elant at Newburgh, located in Orange County, NY, continues to violate patients' rights with respect to its nursing home residents. The latest findings by the DOH range in scope from isolated incidents to patterns of abuse, and most have been labeled as having the potential for more than minimal harm.

This blog has documented health code violations arising from Elant at Newburgh in the past, including failure to prevent bedsores and failure to properly staff the facility, both of which are again included in the current survey. This latest report from the DOH adds several new violations of Title 42 of the Code of Federal Regulations.

• 483.25(l): Each resident's drug regimen must be free from unnecessary drugs. A resident was given additional pain medication to cope with leg pain. Although the resident stated that the medication was ineffective in reducing the amount of pain she was feeling, the pain medication was not monitored consistently, nor was documentation made of the medication's ineffectiveness.

• 483.65: Facility establishes infection control program. A catheterized resident with a history of urinary sepsis did not receive proper treatment of the catheter. As a result, the resident developed a urinary tract infection.

• 483.25(h): Facility is free from accident hazards. A resident, although noted to be monitored for aspiration was allowed to eat a meal unsupervised in her room. Although, by all accounts the Certified Nursing Assistants were aware of the resident's condition, the resident was not required on this occasion to eat in the dining hall, as had been prescribed. A resident such as this is a choking risk. Allowing her to eat alone in her room could have proven fatal. Thankfully in this case, it did not.

The DOH survey documents further violations, too numerous to list exhaustively here. As has been noted in this blog, this section of the CFR is in place to ensure the safety and dignity of residents of long term care facilities. Violations of these statutes fly in the face of not only common sense, but also federal regulations ratified for the residents' protection. Perhaps soon, facilities such as Elant will recognize this and adhere to the rights that they guarantee, under law, to their long-term residents.