Miscellaneous

September 4, 2020

New York Nursing Home Monitors Decline 37 Percent

by Law Offices of Thomas L. Gallivan, PLLC

In just three years, the number of nursing home monitors in New York declined a whopping 37 percent. According to Utica’s Observer-Dispatch, this sharp decline leaves the number of nursing home monitors at less than half of the state’s mandatory minimums. According to elder care advocates, the number of monitors is now so low that the state could run afoul of the federal Older Americans Act.

According to state Comptroller Thomas DiNapoli, funding cuts from the state are the primary cause of the shortage. In New York, like many other states, the nursing home monitoring program (also called an ombudsman program) is comprised of both paid state employees and volunteers. While the number of volunteer monitors has remained constant in the last decade, the number of paid monitors has declined. In 2019, only 50 paid staffers were left to cover 900 facilities. In comparison, 600 long-term care facilities have volunteer monitors. Sadly, the nursing homes that are most in need of monitoring appear to the ones stretched thin when it comes to sharing ombudsman.

The reduced access to nursing home monitors causes “many residents… a very diminished quality of life,” volunteer ombudswoman, Sue Schafer told the newspaper. The program provides nursing home residents and patients weekly access to people who are not employed by their facility and can listen to their concerns and advocate on their behalf. Perhaps more importantly, nursing home monitors are responsible for observing a nursing home’s conditions and reporting any suspicious activities or potential abuse.

February 10, 2020

Rutland Nursing Home Cited, Fined Over $30,000

by Law Offices of Thomas L. Gallivan, PLLC

Rutland Nursing Home received 21 citations for violations of public health code between 2016 and 2019, according to New York State Department of Health records accessed on January 21, 2020. The facility has also been the subject of a 2015 fine of $12,000 in connection to findings it violated health code provisions regarding nutrition and pressure sores; a 2013 fine of $4,000 in connection to findings it violated health code provisions regarding accidents and administration; and a 2012 fine of $22,000 in connection to findings it violated health code provisions regarding quality of care, pressure sores, and accidents. The Brooklyn nursing home’s citations resulted from a total of two surveys by state inspectors. The deficiencies they describe include the following:

1. The nursing home did not ensure the competency of its nursing staff. Under Section 483.35 of the Federal Code, nursing home facilities are required to “ensure that licensed nurses have the specific competencies and skill sets necessary to care for residents’ needs, as identified through resident assessments, and described in the plan of care.” A May 2018 citation found that Rutland Nursing Home failed to comply with this section. The citation specifically describes a Certified Nursing Assistant who “did not know how to apply a resident’s knee device.” The resident in question was nonverbal and had impaired cognition, according to the citation, and required the assistance of corrective devices to improve her range of motion. The resident was observed without wearing her knee splint; in an interview, the CNA said that she did not know how to apply it, and that another CNA typically applied it instead. A plan of correction undertaken by the facility included the disciplining of the CNA in question, who “is no longer an employee of Rutland Nursing Home.”

September 21, 2019

Westchester Doctor Convicted for Stealing 540k from 97-year-old

by Law Offices of Thomas L. Gallivan, PLLC

A Westchester doctor was convicted of stealing over half-a-million dollars from an elderly woman. According to LoHud.com, physician Peter Corines of Eastchester stole the massive sums from a 97-year-old woman over just a two-week period in November 2017. The jury convicted the disgraced doctor of three felonies stemming from the stolen money and stolen identity that Dr. Corines used to swindle the elderly woman. After being convicted on all counts, the judge sentenced Dr. Corines to three years in prison and told him he “was a disgrace to a noble profession.”

In the criminal complaint, prosecutors said Dr. Corines befriended the 97-year-old and then quickly moved to rob and defraud her of her wealth. The doctor obtained power of attorney from her and quickly emptied her accounts. The shameless doctor also impersonated the woman and opened mutual funds and requested checks in her name. With just a couple weeks, the woman’s entire wealth had been siphoned away by Dr. Corines. Prosecutors say the doctor swindled the senior citizen to pay off personal debts incurred from a failed yacht repair business. When police officers arrested the doctor on April 2018, the doctor only had $11,000 left of the woman’s money.

October 21, 2016

Lawsuit Filed Against the Centers for Medicare and Medicaid Following New Arbitration Regulation

by Law Offices of Thomas L. Gallivan, PLLC

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

September 6, 2016

Study Suggests Cure to Alzheimer’s May Be on the Horizon

by Law Offices of Thomas L. Gallivan, PLLC

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 Nature.com.

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.

August 3, 2015

Nursing Homes Compete with Lavish Amenities for Short-Term Rehabilitation Residents

by Law Offices of Thomas L. Gallivan, PLLC

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.

August 3, 2015

Nursing Aide Prosecuted for Brutal Assault against Resident of Nursing Home

by Law Offices of Thomas L. Gallivan, PLLC

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.

April 16, 2015

Medicare.gov Revamps Ratings System for Nursing Homes

by Law Offices of Thomas L. Gallivan, PLLC

Medicare.gov’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, Medicare.gov 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.

Medicare.gov 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%.

March 6, 2015

Recent Arrest by Attorney General Schneiderman in Nursing Home Abuse Cases

by Law Offices of Thomas L. Gallivan, PLLC

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.

January 28, 2015

Court Rules 18 Month Delay in Appointing Administrator Did Not Prejudice Defendants

by Law Offices of Thomas L. Gallivan, PLLC

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).