Resident Safety

Maryland Nursing Homes Deal with Storms, Power Outages, Heat Waves

July 12, 2012 | Lebowitz & Mzhen

A massive storm struck Maryland on June 29, 2012, causing many parts of the state to struggle to restore power and other utilities. A severe heat wave made matters even worse, with more than a week of temperatures approaching one hundred degrees. Power restoration was completed after nine days, but further storms may still leave people vulnerable to the heat. This is a particular concern for nursing home residents. More than thirty nursing homes lost power after the storm, and at least four went without air conditioning for several days.

The storm began in northern Indiana and swept east, reaching the Atlantic coast in about twelve hours. Wind storms known as “derechos,” which typically accompany thunderstorms, hit parts of the Midwest roughly once a year. They are less common in mid-Atlantic states like Maryland. The intense heat wave seems to have worsened wind conditions in this case, creating what meteorologists are calling a “super derecho.” Wind gusts of up to ninety-one miles per hour hit some areas, equivalent to a category 1 hurricane. By the time the storm passed through Maryland, it had killed thirteen people and knocked out power for millions.

Further storms and one of the region’s longest recorded heat waves added to the death toll. By earlier this week, the heat wave had accounted for eighteen deaths in Maryland. Most of the victims were elderly or had chronic conditions like diabetes. Temperatures reached into the high 90’s and low 100’s for twelve days before finally breaking on July 8.

Choking Deaths in Nursing Homes Lead to Calls for More Staff Training

June 27, 2012 | Lebowitz & Mzhen

An unusually high number of cases of nursing home residents choking to death in Connecticut has led to calls for improved training for staff members. The state has fined three nursing homes in three unrelated choking deaths, all occurring within a period of three months. In each incident, nursing home staff left the resident unattended while eating. In two of the cases, the resident had food obtained from outside the nursing home either without the knowledge or permission of the staff. Nursing homes owe a duty to their residents to keep them safe and protect them from unusually dangerous conditions, which includes special needs regarding food.

An elderly resident of the Torrington Health and Rehabilitation Center in Torrington, Connecticut choked to death on a peanut butter and jelly sandwich on February 3, 2012. An investigation determined that nursing home staff left the resident unattended with the sandwich. The resident had strict diet restrictions and required close supervision while eating. The state health department fined the nursing home $510, although the fine could have been as much as $3,000.

Resident Charged with Arson for Fire in Assisted-Living Facility

March 6, 2012 | Lebowitz & Mzhen

Prosecutors in Northfield, Minnesota have charged a 46 year-old assisted-living facility resident with arson after he allegedly set fire to clothing in his closet, displacing forty other residents for several days. William Jerald Kelly reportedly came forward to admit he started the fire. The criminal complaint, filed in Rice County District Court in late February, says that Ryan claimed he started the fire because he was “tired of people being mistreated and being bullied.” He allegedly told an officer after the fire that he did not tell anyone of his concerns because “it wouldn’t have done any good.” Police put Kelly on a psychological hold the day after the fire and sent him to a local hospital for evaluation. The Northfield Deputy Police Chief told the media that Kelly “likely has a mental disability.” He is scheduled for his first court appearance on April 3. The felony arson charge carries a penalty of up to twenty years in prison, a fine of up to $20,000, or both.

The fire occurred on Sunday, February 5, 2012 at about 7:30 p.m. in Kelly’s apartment. The evacuation reportedly began during the halftime show of the Super Bowl. Fire crews evacuated all of the residents and contained the fire to the one unit. The rest of the facility suffered smoke damage, however, so residents were not able to return immediately. Fortunately, no one was injured, and the residents were able to return to the facility within a few days.

Residents were evacuated to several locations, including nearby hospitals and a Red Cross shelter. They first went to a church across the street from the facility, where emergency responders picked them up. All residents were accounted for within minutes of the evacuation.

Police almost immediately suspected that the fire was set intentionally. Kelly reportedly approached police soon after the evacuation to admit his role in starting it. The criminal complaint says that he told police he set fire to some of his clothes in his closet. He then triggered the fire alarm, locked the door to his bedroom, and went out an entrance door and into the parking lot. Kelly reportedly told police he did not intend to hurt anyone.

Man Who Won $200 Million Judgment Against Nursing Home for His Mother’s Wrongful Death Faces Corporate Shell Game When Trying to Collect

February 28, 2012 | Lebowitz & Mzhen

Suffering from dementia and confined to a wheelchair, 94 year-old Florida nursing home resident Elvira Nunziata needed near-constant supervision. Still, she managed to pass through a door that should have been locked, falling down a stairwell and sustaining fatal injuries in 2004. Her son, Richard Nunziata, knew someone at the nursing home had made a fatal mistake.

Nunziata filed suit against the nursing home for wrongful death, claiming that negligent supervision by staff led directly to his mother’s death. We reported last month in this Maryland Nursing Home Lawyer Blog that a jury awarded him $200 million in damages. There was one major problem with the verdict, however: no one showed up to defend the suit at trial. This case demonstrates how the law holding nursing homes liable for injuries has not caught up with the way nursing homes are owned and managed.

For-profit nursing homes, which have surged in the past decade or so according to the Tampa Bay Times, often split ownership of a nursing home among several different business entities. Each company would own different parts of the nursing home operation or handle responsibility, and liability, for different parts of the business. One company might own the building housing the nursing home, while another company owns the equipment and yet another handles payroll and personnel. If one part of a nursing home operation runs into legal trouble, a parent company can dissolve that business entity and create a new one. This process has little to no transparency. In this environment, it can be exceedingly difficult for someone seeking to make a claim for an injury to even identify which business is liable. It is even difficult for state and federal regulators to determine where to put liability for regulatory infractions.

In Nunziata’s case, Pinellas Park Care and Rehab Center, the home where his mother last lived, was owned by one company and operated by another. Trans Health Management, Inc., the home’s operator, reportedly had its corporate status revoked by the state of Florida by the time Nunziata sued in 2005. A forensic accountant testified at trial that Trans Health’s business was sold in 2006. Three separate companies each bought or “inherited” Trans Health’s operations, management contracts, and liabilities. The company that ended up with its liabilities, Fundamental Long Term Care Inc., also lost its corporate status and no longer exists. The accountant testified that most of these companies existed for the sole purpose of shuffling Trans Health’s assets and liabilities around. Nunziata’s best bet, for which there may be some precedent, is to go after the private equity companies that put all these businesses together in the first place.

Nursing Home Addresses Safety Concerns, Deals with Allegations of Sexual Abuse

February 21, 2012 | Lebowitz & Mzhen

A Rhode Island nursing home faced an ultimatum from the government in January: fix various problems by February 1 or lose its status as a Medicare and Medicaid provider. The Centers for Medicare & Medicaid Services (CMS), the federal agency tasked with managing both programs, sent a letter to Hebert Nursing Home in Smithfield, Rhode Island on January 19 outlining infractions of seven regulations that the nursing home needed to address. The regulations in questions dealt with issues of mistreatment or neglect of residents, residents’ dignity and respect, residents’ well-being, administration of the facility, and the medical director’s responsibilities. A CMS spokesperson called the alleged infractions “serious” and said they posed “immediate jeopardy” for residents, but could not disclose many specific details of the allegations.

CMS has legal authority to monitor nursing homes that are part of the Medicare and Medicaid systems, and it has the responsibility of maintaining standards of quality in all of the nursing homes it monitors. As part of its corrective actions, CMS began fining Hebert $5,500 a day beginning December 22, 2011. It also stated that it would begin denying payments under both its programs for new patients after January 23. It gave Hebert’s administrators until February 1 to address CMS’s concerns, after which it would terminate Hebert’s involvement with Medicare and Medicaid. This would effectively destroy Hebert’s business since so many nursing home residents rely on one or both of these programs to pay for their care.

By the beginning of February, CMS had withdrawn its complaint after receiving a satisfactory response from Hebert, indicating that it was addressing CMS’s concerns. At about the same time, however, allegations publicly surfaced that several staff members had voiced concerns about the sexual abuse of a resident. Two certified nursing assistants and a psychiatric nurse reportedly gave statements to police on November 30 and December 1, 2011, describing incidents of sexual abuse they had witnessed at the nursing home.

The three employees stated that they saw two women sexually abusing their 89 year-old mother, a resident at the facility, on several occasions while visiting her. In their statements to police, they reported seeing the women touching their mother in her genital area and other acts of abuse. The two women reportedly told the workers that they needed to check their mother’s incontinence, but the psychiatric nurse claims that there would be no reason for them to do so manually.

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.

Drug Tampering by Nurses Reveals Problems in Regulation and Hiring

December 21, 2011 | Lebowitz & Mzhen

A Kansas nurse accused of tampering with nursing home medications pleaded guilty to one count of adulteration of a drug and one count of consumer product tampering in a Topeka federal court at the end of November. Melanie Morrison admitted to diluting morphine solutions at the nursing home in Salina where she worked. The nursing director noticed that the caps had been removed from several vials of medication, and that the rubber covers had puncture marks indicative of a hypodermic needle. Morrison would mix sodium chloride into morphine sulfate, which reduced the painkiller’s effectiveness. She would also outright replace morphine vials with sodium chloride and take the morphine home. This put patients at risk, as some elderly patients can react very badly to sodium chloride solution. She admitted that she acted with “reckless disregard and extreme indifference” to the risks to the patients in her care.

Morrison’s plea deal could result in a prison sentence of up to three years. She has also surrendered her nursing license and agreed never to work in health care again. Prosecutors are asking that she go into a treatment program for drug addiction. If she completes the program, she could qualify for early release from prison.

The Kansas City Star notes that Morrison’s case illustrates an alarming problem with Kansas’ nursing regulations. According to news reports, Morrison had previously lost a job at a Wichita hospital for stealing the painkiller Percocet. Within months, she had a new job at a nursing facility with full access to the drug supply. The Star notes other similar cases. A nurse convicted of stealing patients’ drugs at an Emporia nursing home later found a job at a home in Topeka. There, she was caught diluting a patient’s painkiller with tap water. A nurse who diluted morphine solutions for several patients in Halstead had a previous conviction for prescription forgery.

The problem, according to the Star, is that Kansas law does not require nursing homes to conduct background checks on nurses and other medical professionals. The state nursing board obtained authority to conduct background checks on new nursing licensees, but not renewals, a mere three years ago. Nursing homes and hospitals therefore have no effective means if learning of any criminal or drug abuse history of their nurses. With regard to employees who regularly handle powerful narcotic medications, with patients in delicate medical condition, this would be useful information for nursing home administrators to have.

Maryland Nursing Homes Demand Higher Priority for Power Restoration During Outages

November 15, 2011 | Lebowitz & Mzhen

Power outages across the east coast in the wake of Hurricane Irene left many Maryland nursing homes without electricity for five to eight days in late August. In all, about 800,000 people experienced power loss due to the hurricane, which caused billions of dollars of property damage and cost at least one life. We have previously commented on the risks posed to nursing home residents in Maryland from flooding and other natural disasters. The extent and length of recent power outages create perhaps an even greater risk to resident safety, considering the dependence of so many on medical devices and monitoring equipment. An overhaul of power restoration procedures, as well as an examination of nursing homes’ plans for dealing with power outages, are crucial to protecting the safety of nursing home residents.

Maryland citizens, nursing home advocates, and nursing home administrators are all calling on the state to review the system of power restoration after natural disasters. Power outages forced closures of businesses and schools across the state, and made it difficult for people to both evacuate and return home. The Maryland Public Service Commission (PSC), the state agency tasked with regulating utility companies, has opened an investigation into the performance of Baltimore Gas and Electric (BGE) during and after the storm. BGE created a stir when it announced that the $81 million it spent restoring power may lead to higher rates on services in the future. The PSC must approve any rate increase.

BGE and other utilities use a priority system to manage power restoration, focusing first on public safety, including hospitals, and critical infrastructure such as pumping stations. Nursing home representatives and others are asking that nursing homes receive the same priority as hospitals, since they serve very similar functions for their residents. A nursing home administrator testified to the PSC that “today’s nursing homes closely resemble hospitals in caring for medically complex patients, using the same type of equipment, like ventilators, G-tubes, breathing machines and dialysis machines.” In an order issued on October 31, the PSC has asked BGE and other utility companies to draft new implementation plans based on the experience of Irene, to collaborate in finding a way to reliably inform customers of when to expect power restoration, and to notify the PSC of the protocols used to determine priority for power restoration. The PSC hopes to create consolidated procedures for future hurricanes and other disasters.

Caring for Nursing Home Residents During Natural Disasters

November 8, 2011 | Lebowitz & Mzhen

Several major storms have hit the east coast of the U.S. this year, sending rains and floods to Maryland. September saw substantial flooding in parts of the state because of Hurricane Irene and Tropical Storm Lee, with rising flood waters washing away bridges and roads and threatening major population areas. Towns along the Susquehanna River in particular faced dangerous flooding. Residents of a nursing home in Havre de Grace, where the river meets Chesapeake Bay, had to evacuate in early September when floods threatened to engulf their facility. In all, 165 residents evacuated to other nearby facilities. This raises the question of how nursing homes can best ensure residents’ safety in such dire situations.

A nursing home in Chestertown, Maryland, located across the Susquehanna River from Havre de Grace, took in some of the evacuated residents, according to the Chestertown Spy. Administrators at the Chestertown facility learned of an SOS to all area facilities through Lifespan, a mid-Atlantic network of senior care providers. They took in sixteen evacuees, who remained at the facility for about three days, arriving on a Thursday night and returning to Havre de Grace Monday morning. Fortunately, the Susquehanna did not flood enough to threaten the nursing home, and residents were able to return without injury or serious incident.

Who has responsibility for the safety and well-being of residents during such emergency situations? Such determinations depend heavily on the individual circumstances. The basic facts on the ground may prevent well-meaning caregivers from providing adequate care, but a fundamental obligation to take reasonable steps to ensure safety remains. Even in a critical evacuation, caregivers must take all steps possible to provide necessary care. Residents needing a high level of care, including ongoing monitoring and medication, may face significant risks in emergencies, and nursing home staff must do whatever is reasonably within their power to provide for those needs. This usually involves transfer to another facility that can provide needed care. The facility taking custody of residents takes on responsibility for their well-being, but residents’ home facility still bears responsibility for seeing that they make it somewhere that can adequately care for them.

The situation in Maryland turned out well, but not all recent disasters have had positive outcomes. The most famous example, of course, is 2005’s Hurricane Katrina in Louisiana. Thirty-two residents of a nursing home in St. Bernard Parish died when flood waters hit their home after the hurricane made landfall. While many heroic stories of rescues and escapes came out of that area, residents of one home simply did not evacuate in time, with tragic results.

Maryland Home Health Care System Settles Medicaid Fraud Allegations

November 3, 2011 | Lebowitz & Mzhen

A home healthcare service provider based in Columbia, Maryland, Maxim Healthcare Services, Inc., has entered into settlement agreements with the federal government and several state governments to resolve allegations of fraudulent reimbursement claims. The federal case, which involved both civil and criminal complaints, accused the company of defrauding public programs like Medicaid and the Veterans’ Affairs program out of over $61 million since at least 2003. The complaints alleged a nationwide scheme that involved fraudulent billings to government programs, fraudulent documentation of billing records, and false statements to government officials.

Maxim provides home health care services across the country, which includes full-time homecare services to adult and elderly patients. The company discusses the importance of care planning and home safety on its website. It has a national reach, with hundreds of offices across most U.S. states. Maxim’s services potentially involve the same level of care and responsibility as in the nursing home environment, where the patient becomes fully reliant on the caregiver for support. While it does not provide inpatient care for the elderly, the case demonstrates how a facility can come to place other concerns above the best interests and well-being of its patients, a concern that is always present for nursing home residents.

The federal government’s case against Maxim alleged violations of the False Claims Act, a federal statute first passed in 1863 after widespread fraud by government contractors during the Civil War. Congress has amended the law several times, most recently in 2009 with passage of the Fraud Enforcement and Recovery Act, and in 2010 with the Patient Protection and Affordable Care Act. Generally speaking, the statute prohibits knowingly making false statements or presenting false records in order to receive a payment or benefit from the federal government. Some states also have similar false claims statutes protecting state-level public programs.