Nursing Home Legislation

Florida Senate Committee Passes Bill Affecting Nursing Home Lawsuits

May 20, 2013 | Lebowitz & Mzhen

The Florida Senate Judiciary Committee recently voted to approve a bill that would have a major impact on the ability of plaintiffs in nursing home lawsuits to recover punitive damages.

SB 1384, which passed by a 7-2 vote, would require that at an evidentiary hearing the individuals establish that the nursing home breached its legal duty, which resulted in the actual injury, loss, or damage to the victim.

Sources believe that rather than achieving reform, the law would preclude valid nursing home lawsuits. Current law already requires that 50% of punitive damage awards against nursing homes go to a state “quality trust fund.”

Under current law, plaintiffs must present evidence at a pre-trial hearing, but do not need to prove that it is admissible. This presentation of evidence is called a “proffer.” The bill, as written, would require a stricter hearing in order to allegedly filter the plaintiff’s evidence, and would further require the presiding judge to grant permission to seek punitive damages. The alleged aim is to prevent cases which seek to use inadmissible evidence, such as hearsay, in establishing a claim for punitive damages.

The original proposal also contained provisions making it more difficult to sue the nursing home’s parent company, but those sections have since been removed.

The bill must be approved by two additional committees before it would proceed to a full Senate vote.

Oklahoma Considers Hidden Camera Law to Protect Nursing Home Residents

April 26, 2013 | Lebowitz & Mzhen

The Oklahoma Legislature is in the midst of deciding whether to approve a measure that would allow loved ones to place hidden cameras in resident rooms in order to document potential abuse. The issue of hidden camera placement is currently up to each individual facility to decide.

As proposed, Senate Bill 587 would allow nursing home residents to put cameras inside their rooms. However, there is an amendment to the bill that would potentially penalize anyone who sets up a camera without first obtaining permission.

The bill is being advocated for by three sisters who caught workers on camera mistreating their mother while she was a resident of the Quail Creek Nursing Home. According to one of the sisters, who placed the camera in her mother’s room,”One of them had put rubber gloves in her hand and she was stuffing them in mother’s throat.” Although their mother died last year, the sisters remain strong advocates for the bill.

While we always hope that our loved ones won’t be the victims of nursing home abuse or neglect, the sad truth is that many are. With many elderly individuals suffering from dementia or other ailments which impede their ability to communicate, absent objective markers, we may continue to remain unaware that they are being mistreated. Bills like this one would provide a potential way for family members to ensure that their loved ones are receiving the quality of care that they need and deserve.

Federal Law Protects Nursing Home Residents from Bed Sores

February 19, 2013 | Lebowitz & Mzhen

Pressure sores or ulcers, which are commonly referred to as bed sores, are probably among themost common sort of potential new injury incurred by nursing home patients who are incapable of moving about freely. While they can be annoying or painful, they can also become infected and lead to a vast array of additional complications for nursing home residents. Perhaps most importantly, they can be prevented.

It’s for this reason that federal law makers have passed regulations for nursing home facilities which address this problematic complication.

42 CFR § 483.20 entitled “Resident Assessment” requires a comprehensive assessment of the resident. While this blog post focuses on the skin care assessment and bed sore prevention, the facility is required to assess 17 other factors, all related to the patient’s condition upon entering the facility. The facility has 14 days from the person’s arrival to complete this assessment, and it then has 7 days from the completion of the assessment to develop a care plan addressing the patient’s various needs.

42 CFR § 483.25 Quality of Care, explicitly addresses what must be done in regards to bed sores specifically. It states that based upon the comprehensive assessment, the facility must ensure that:

A resident who enters the facility without bed sores does not develop them (unless the person’s individual medical condition makes them unavoidable); and
A resident who does have bed sores must receive proper treatment and/or services to promote the healing process, prevent infections from developing, and prevent new sores from happening.

Fourth Circuit Upholds Dismissal of False Claims Act Lawsuit Alleging Nursing Home Medicaid Fraud: United States ex. rel. Black v. Health & Hospital Corp. of Marion County

December 4, 2012 | Lebowitz & Mzhen

The Fourth Circuit Court of Appeals affirmed the dismissal of a qui tam lawsuit brought under the False Claims Act (FCA) against a nursing home for alleged Medicaid fraud. The relator in United States ex. rel. Black v. Health & Hospital Corp. of Marion County alleged that an Indiana nursing home fraudulently submitted bills to the Medicaid system for services it had not rendered. The United States declined to intervene in the lawsuit. The relator alleged that bills submitted for federal matching funds from the Medicaid system exceeded amounts spent on actual care to Medicaid patients, and argued that this constituted fraud. The trial court dismissed the suit for lack of subject matter jurisdiction. The case demonstrates the complex nature of the Medicare and Medicaid systems and the difficulty of understanding, let alone enforcing, laws prohibiting fraud.

The relator, Paul R. Black, resides in Indiana. After unsuccessfully filing a qui tam suit in an Indiana federal court, he filed the present case in the U.S. District Court for the District of Maryland against Health & Hospital Corporation of Marion County (HHC), an Indiana nursing home. The district court described the three state-level Medicaid funding mechanisms at issue in Black’s suit:
– The Upper Payment Limit (UPL) system sets an upper limit for the amount a state may reimburse medical providers equal to the amount it could receive from Medicare.
– Intergovernmental transfers (IGTs) allow states to transfer money from local government entities to the state government in order to fund the state’s portion of Medicaid expenses.

– Certified public expenditures (CPEs) are expenditures made by Medicaid providers that qualify for matching funds directly from the federal Medicaid system. They must receive certification from the federal Centers for Medicare and Medicaid Services (CMS).

Black’s lawsuit, as well as the Indiana suit filed before it, alleged that HHC was over-reporting expenditures to the Medicaid system using fraudulent IGTs or CPEs, thereby making an unlawful “profit” on Medicaid-funded services. Black asserted four causes of action for violations of the FCA, including factually false claims to CMS, legally false claims to CMS, submission of false records and statements, and conspiracy to defraud the United States. HHC moved to dismiss the suit, and the trial court agreed.

Federal Program Tries to Help Nursing Home Residents in Maryland and Washington DC Return to Their Communities

November 23, 2012 | Lebowitz & Mzhen

A federal program intended to help transition nursing home residents who receive Medicaid into community- and home-based care has had some success in Maryland, but people in many states have experienced difficulties with relocation. The Money Follows the Person (MFP) program, initiated in early 2008, is intended to help individuals who might benefit from home-based services to get out of long-term care institutions. It could potentially help ease the burden on overcrowded or understaffed long-term care facilities, thereby improving care for all residents.

The primary goal of MFP, according to the Center for Medicare and Medicaid Services, is to help state governments “rebalance their long-term care systems” to favor home- and community-based services (HCBS) over institutional services. HCBS may include small group homes, private homes, or apartments with some degree of living assistance. The program is also intended to expand the use of Medicaid funds to allow patients greater choice in long-term care services, and to provide oversight and quality control over HCBS that receive Medicaid funds. Forty-three states, including Maryland and Virginia, and the District of Columbia have signed on to the program. The Affordable Care Act of 2010 extended the program from its initial five-year period until 2016, appropriated additional funding, and expanded the eligibility criteria for patients.

Federal Grant Program Helps Maryland Improve Care Options for Seniors

July 19, 2012 | Lebowitz & Mzhen

The Patient Protection and Affordable Care Act (ACA), enacted by Congress in 2010 and known colloquially as “Obamacare,” has caused an historic amount of controversy over the past two years. It recently survived a Supreme Court challenge, and some of its provisions have begun to take effect. While Americans may disagree vehemently about all or parts of the law, some provisions have begun to benefit Maryland seniors in significant ways. A grant from the federal government, part of the Balancing Incentive Program (BIP), should allow the Medicaid program to cover more patients and provide seniors with more care options. Seniors who may not require full-time care in a nursing home may now be able to obtain home- or community-based care. This could free up space and resources in overburdened and understaffed full-time care facilities.

President Obama signed the ACA into law on March 23, 2010. The hefty bill mainly addresses the rights and duties of health insurance providers and patients. The most controversial provision, the “individual mandate” to purchase health insurance if it is not available through employment or public assistance, survived review by the Supreme Court in a June 28 ruling. The law includes provisions, most of which have not yet taken effect, preventing insurance companies from denying coverage for a “pre-existing condition,” restricting when and how an insurer may cancel coverage, and much more.

U.S. Senators Call for Reauthorization of Older Americans Act

April 5, 2012 | Lebowitz & Mzhen

At a press conference on March 28, 2012, U.S. Senator Bernie Sanders (I-Vt.) called for reauthorization of the Older Americans Act (OAA), legislation that provides support for American elders. The terms “elder” and “older person” here refer to people aged 65 or older. Fourteen other senators joined Sanders in calling for reauthorization, including Maryland Democratic Senator Barbara Mikulski. Sanders introduced a bill reauthorizing the OAA on January 26, titled the “Older Americans Act Amendments of 2012.” The bill currently has no cosponsors and is pending in the Senate Committee on Health, Education, Labor, and Pensions.

Congress originally enacted the OAA in 1965 as the first federal effort to provide services to older Americans on a wide scale. The law created a National Aging Network consisting of the federal Administration on Aging (AOA) within the Department of Health and Human Services and state- and local-level agencies. The Network funds various community services that that benefit older adults, including nutrition and health support, caregiver support, and legal assistance. Many programs focus on older populations in underserved rural areas and on promoting job skills and community engagement among older people.

Amendments to the OAA in 1992 authorized the creation of an office within the AOA to address issues relating to elder abuse, or “vulnerable elder rights protection.” This led to the establishment of the National Center on Elder Abuse (NCEA) as a permanent office. The NCEA, first formed in 1988, serves as a national resource center for information on elder abuse. It conducts research and compiles statistics, and it provides education on recognizing signs of abuse and preventing abuse. It works with organizations at the state and local level that work on elder rights issues to help people work to prevent elder abuse and neglect by nursing homes, caregivers, and family members.

Senator Sanders’ bill reauthorizing the OAA includes several additions and modifications to the existing law. Perhaps most importantly for nursing home residents, the bill would provide additional support for the AOA’s Long-Term Care Ombudsman Program. The Ombudsman Program supports programs in all fifty states that advocate for the rights and interests of nursing home residents. Ombudsmen review complaints of nursing home residents regarding issues like poor food or care quality, poor administrative services, and conflicts between residents. Serious issues of abuse and neglect may call for the assistance of an elder abuse attorney, but the federal and state ombudsmen offer a valuable support network for nursing home residents.

Proposed Maryland Legislation Would Increase Criminal Penalties for Elder Abuse

March 16, 2012 | Lebowitz & Mzhen

A bill that would increase criminal penalties for people who engage in elder abuse has met with unfavorable reports in the judiciary committees of both houses of the Maryland Legislature. The bill, known as the John H. Taylor Act, has been introduced in the Legislature several times, and its supporters are not likely to give up. The bill’s namesake, was ninety years old when he suffered several severe beatings by an in-home caregiver in 2007. He was recovering from multiple strokes at the time. One of the beatings was caught on tape, and his daughter, Jacqueline Taylor, learned that he had suffered three more beatings from his caretaker that month. She showed the video to the House Judiciary Committee at a hearing in January and testified in support of the bill.

According to a website set up by Jacqueline Taylor, the caretaker, Anastacia Oluoch, was arrested in 2007 and charged with four counts each of abuse or neglect of a vulnerable adult, second degree assault, and reckless endangerment. All of the charged offenses are felonies. She was released on bail and fled the country before her trial date. She was reportedly arrested in Kenya in 2011 and could be extradited to the United States. John H. Taylor passed away in 2009.

Under current Maryland law, abuse or neglect of a vulnerable adult applies to a person with a “contractual undertaking to provide care” to an adult lacking “the physical or mental capacity” to provide self-care. “Abuse” includes intentionally inflicting pain or injury and sexual abuse. “Neglect” includes the withholding of food, medical care, and other necessary services. Abuse or neglect that involves sexual abuse or results in death or serious physical injury is a first-degree offense, carrying a maximum penalty of ten years’ imprisonment and a $10,000 fine. All other abuse or neglect is a second-degree offense, with a punishment of up to five year’s imprisonment and a fine of $5,000.

The proposed legislation would modify the statutes defining both first- and second degree abuse or neglect of a vulnerable adult. It would prohibit a District Court commissioner from releasing a defendant charged with either offense prior to trial. A judge, subject to certain requirements and conditions, could still authorize a defendant’s release, with provisions specifically preventing a defendant from leaving the country. The bill also doubles the maximum penalties for first- and second-degree offenses. Critics of the bill worry that it may infringe on a defendant’s due process rights and limit judges’ discretion.

Proposed Bill Would Require Notification of Nursing Home Residents on Sex Offender Registry

January 9, 2012 | Lebowitz & Mzhen

Governor Terry Branstad of Iowa has asked the Iowa Legislature to pass a bill requiring nursing homes to notify residents when a registered sex offender moves into the facility. Courts often order individuals into nursing home care after a plea or conviction, and some of those individuals must also go on the sex offender registry under the same order. Iowa officials estimate that fifty to fifty-five registered sex offenders currently reside in nursing homes in the state. Discussion of nursing home abuse and neglect often focuses on the action, or inaction, of nursing home staff, but residents may also face the risk of abuse from fellow residents.

The governor’s proposal arose from an incident last year at a nursing home in Pomeroy. An 83 year-old male convicted sex offender suffering from dementia who suffered from dementia assaulted a 95 year-old female resident. After the man was released from a facility designated for sex offenders, a judge had ordered him to be placed in the nursing home.

Shortly after the incident in Pomeroy, the governor convened a group to review laws relating to sex offenders in long-term care facilities. The proposed legislation is based on their recommendations. The governor announced the bill during his weekly radio address on January 9. In addition to notification of other residents or their representatives, nursing homes would have to create a written safety plan for use when a sex offender resides in the facility. He suggested that facilities might choose to designate an area to focus on sex offender residents, comparing the idea to wings designated for Alzheimer’s patients and other conditions.

The bill creates a delicate question about how to balance the right of nursing home residents to a safe living environment with the right of convicted sex offenders to also get an appropriate level of care. Nursing home residents are among the most vulnerable of people, and the notion that they might face abuse by a fellow resident with a possible history of abuse seems to shock the conscience. Once convicted sex offenders have served their punishments, however, they ostensibly have the same rights to nursing care as anyone else. Governor Branstad acknowledged the need to balance the interests of resident and public safety with the right to receive care, particularly when a person has been committed to care via a court order.

October is Long-term Care Residents’ Rights Month in Maryland and around the Country

October 19, 2011 | Lebowitz & Mzhen

October is Long-term Care Residents’ Rights Month, a time to celebrate the rights and dignity of people living in nursing homes. Thanks to strong legislation and regulations, nursing home residents have a legal guarantee of certain protections against abuse and neglect. Residents do not give up their rights as adult citizens solely by virtue of entering a nursing home environment. All nursing homes participating in Medicaid and Medicare must respect the rights covered by this law.

Congress passed the 1987 Nursing Home Reform Act after a study conducted by the Institute of Medicine found alarming rates of inadequate care, abuse, and neglect in nursing homes around the country. The Institute recommended a wide range of reforms that became law as part of a budget bill. The law aims to protect the physical, mental, and psychosocial wellness of nursing home residents by requiring nursing homes to provide certain services and creating a “Resident’s Bill of Rights.” Nursing homes must comply with the law in order to remain eligible to accept Medicare and Medicaid payments. Laws passed in 2010 expand on the rights protected by the 1987 law.

Nursing homes are required by this law to provide each resident with a personalized comprehensive care plan, along with periodic assessments of their care. They must provide nursing and social services, as well as rehabilitation and the ability to dispense prescription medications. Facilities with more than 120 beds should employ a full-time social worker to assist residents.

The Residents’ Bill of Rights lists numerous rights protected by federal law. These include:
– Freedom from abuse, neglect, or restraint;
– Privacy;
– Dignity;
– A clean and safe environment;
– Accommodation of particular medical and other needs;
– Communication and visitation with others;
– Participation in one’s care plan and frequent updates regarding one’s health condition;
– Complaint without fear of retribution;
– Control of one’s own finances, if possible; and

– Refusal of treatment when desired.

The Nursing Home Reform Act created an enforcement procedure that begins with routine inspections by state governments to review a nursing home’s certification. Surveyors may also investigate specific complaints or allegations, reviewing the amount of danger faced by residents and the likelihood that the alleged incident might occur again. One serious consequence of non-compliance with the law involves loss of Medicare and Medicaid eligibility. The law allows penalties ranging from remedial training for staffers to state management of the nursing home or outright termination of the home’s provider agreement with the state.