Articles Posted in Sexual Abuse

All nursing homes that receive more than $10,000 are required by federal law to report any suspicion of crimes against their elderly residents. While there have been reporting problems, the Department of Health and Human Services has vowed to increase enforcement of these federal regulations.

The mandatory reporting requirement, originally a part of the Affordable Care Act, more colloquially known as Obamacare, has two main provisions – both of which carry heftier fines as of November 28, 2017. A violation of these laws can result in a fine of up to $221,000. If the failure to report the suspected crime results in more harm to the resident, the fine increases to $331,000. The assisted living facility will also be fined for retaliating against any employee or resident that reports a suspected crime. The maximum fine allowable for a retaliatory measure is $221,000. Continue reading

A scathing report by the Office of Inspector General shows that 25 percent of nursing home abuse cases go unreported. Of these unreported cases, 80 percent involved an allegation of sexual abuse or rape of an elderly person. The Center for Medicare and Medicaid Services (CMS) has promised to do more to identify abuse and neglect, and step up its enforcement whenever it occurs.

missing-patient-300x196According to CBS, this horrific problem has two main causes. First, CMS lacks the procedures and protocols necessary to ensure nursing homes are reporting abuse. Second, in the rare case that a nursing home does run afoul of the law – the fines are so insignificantly small that its cheaper for businesses to just pay the fine, rather than increase staff or the quality of their retirement home. Continue reading

A recent federal and state report excoriated New York’s handling of complaints against nursing homes and nurses in the state.

An audit by the New York found that the state had failed to properly investigate complaints against nurses. For the cases that are deemed “priority 1” – the most serious which usually involve allegations of sexual misconduct or abuse – New York took an average of 228 days to investigate. State law re

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quires these investigations to conclude within 10 days of the complaint. In one horrific case, New York failed to sanction, or otherwise discipline a nurse in any way, after she administered an overdose of insulin that nearly killed a patient. In another case, it took New York almost a year-and-a-half to revoke the nursing license from a Bronx nurse who sexually assaulted a patient.

New York performs even worse when factoring in lower-priority complaints against medical care professionals. With over 8,000 complaints lodged between April 2014 and April 2017, more than 2,000 were not performed within the required 180-day time period.

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The Inspector General for the Department of Health and Human Services (HHS) released a report stating that at least one in four instances of elder abuse or neglect are not reported. While horrific in scope, the results are not entirely surprising – other, smaller samples have found that 15 to 20 percent of elder abuse cases were not reported to the proper authorities or government agencies. The most recent study, released by the HHS Inspector General, based its findings on a large sampling of cases spanning 33 states. The study, which pegged the underreporting rate at exactly 28 percent, was released with a demand that Medicare take “corrective action right away.”

Despite mandatory reporting laws by both the federal government virtually all states, the rathelpe of under-reporting remains stubbornly high. On the federal level, nursing homes are required to report any incidents involving a suspected crime immediately and any other case of suspected elder abuse within 24 hours. The Centers for Medicare and Medicaid Services (CMS) can fine nursing homes up to $300,000 for failing to comply with the law. While such a strict timeline and the possibility of hefty fines would typically discourage non-compliance, the HHS report shows that the law requiring reporting of any elder abuse – whether physical, financial, sexual or otherwise – is mostly unenforced by CMS.
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As part of President Trump’s promise to roll-back federal regulations, the Trump administration has announced its intention to scrap a federal rule prohibiting nursing homes from requiring their residents to pursue legal claims through arbitration.

In the simplest terms, arbitration is a catch-all term for a dispute-resolution that, while legally binding, does not utilize the court system. The practice has exploded in popularity in recent decades – especially among larger corporations and nursing homes. These entities prefer arbitration because the costs are generally lower, the dispute resolution process moves much faster than the courts, and parties generally do not have a right to appeal thus providing both parties some finality to their dispwalking-out-300x225ute. Opponents of arbitration say the extra-judicial process favors corporate interests and curtails the rights of victims – from limiting discovery to removing the opportunity to appeal. Further, arbitration also removes the right for a person to have their case heard before a jury, and instead substitutes a so-called “neutral arbitrator.”
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With toothless regulations and ineffective oversight, many nursing homes are still failing the neediest patients. With its budget for overseeing nursing homes slashed in half, the Center for Medicare and Medicaid Services (CMS) has failed to identify failing nursing homes and keep them accountable. As a consequence, some nursing homes are choosing to accept the infrequent fines instead of changing their behavior.

helpCMS is responsible for overseeing all nursing homes that receive benefits from these federal entitlement programs. CMS routinely inspects nursing homes for any violations, if a violation is found, then CMS has two options. First, CMS can put the facility on “special focus” status – reserved for the worst offenders. A nursing home with this designation would be routinely inspected more often and, supposedly, would be punished more severely for any violations. Unfortunately, federal budget cuts have blunted the amount of nursing homes that can be put under “special focus.” Since 2012, the budget for inspecting facilities with this designation has dropped by half. Consequently, despite regulators identifying 435 facilities that warranted this designation, only 88 nursing homes were actually put on the watchlist. Further, once a Continue reading

physical-abuse-300x169A Berkshires caretaker has been charged with elder abuse after an 84-year-old man told hospital staff that his two broken ribs were caused by being “thrown around like a rag doll.” The 52-year-old man, Anthony Marcella II, was arraigned in Central Berkshire District Court on charges of assault and battery on a person over 60 or disabled, witness intimidation, caretaker abuse of an elder, and caretaker abuse of an elder causing serious bodily harm. Marcella has pleaded not-guilty to all charges and was released on a bail.

On May 22 or 23, Marcella was allegedly “rough” when picking up the elderly victim (whose name is not provided) after he fell down. According to court documents, Marcella squeezed him in an aggressive manner and proceeded to throw him around “like a rag doll.” The elderly victim suffered two broken ribs as a result of his caretaker’s abusive treatment. Continue reading

Jacky Stanley, a former rehabilitation worker at Northeast Center for Special Care in Lake Katrine, New York was convicted of sexually abusing six male residents at the facility – each of whom were in the facility after suffering traumatic brain injuries. All six male residents testified in court that Stanley molested them in some way – either by performing oral sex on them, or by “rubbing or trying to touch” their genitals. Despite the prosecution providing no physical evidence and no witnesses of the abuse (other than the victims), Stanley was convicted of almost all crimes the prosecution had brought against him. The trial lasted four days and jurors deliberated for roughly eight hours over two days.

The Northeast Center for Special Care “provides care and rehabilitation to individuals who have suffered traumatic brain injuries” – generally caused by stroke, motor vehicle accidents, falls, and other catastrophic event. Stanley was an employed as a “Neighborhood Counselor” – whose duties included managing residents’ social environment and ensuring that residents participated in their required programs.

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A former employee of Northeast Center for Special Care (NCSP) in Lake Katrine was convicted of sexually abusing six residents of the facility who were admitted for traumatic brain injuries.

NCSP is a facility that provides rehabilitation and care for those suffering traumatic brain injuries caused by stroke, motor vehicle accidents, falls and other dire events. Jacky Stanley was employed as a “Neighborhood Counselor”, responsible for assisting residents in getting accustomed to the facility. His responsibilities included managing residents social environment and ensuring residents participated in their required programs. Continue reading

The Centers for Medicare and Medicaid Services (CMS), an agency of the Health and Human Services Department, has issued a rule that will prevent nursing homes receiving federal funding from requiring resident’s to sign admission agreements with arbitration clauses. An arbitration clause is a clause in a contract requiring parties to resolve issues through the arbitration process, therefore depriving the resident of his/her right to bring a lawsuit against the nursing home. These clauses have forced claims of sexual harassment, elder abuse and even instances of wrongful death from being handled in an open courcourthouset.

The fine print of arbitration clauses have also prevented disputes on resident safety and quality of care from being publicly known. This rule will provide new protections to 1.5 million nursing home residents. The agency’s new rule is the most significant overhaul of rules regarding federal funding for long term care facilities, restoring millions of Americans their right to pursue action in an open court.  The rule applies to pre-dispute matters, allowing the parties to a dispute the opportunity to seek arbitration after a dispute arises. Continue reading

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