Maryland Nursing Home Lawyer Blog

Study by Federal Regulators Finds Higher Rate of Medicare Fraud Among For-Proft Nursing Homes

February 5, 2013 | Lebowitz & Mzhen

A substantial percentage of Medicare claims made by for-profit nursing homes were found to be “improper,” according to a report issued late last year by the U.S. Department of Health and Human Services (HHS). The percentage of improper claims among for-profit facilities was reportedly more than double the rate for non-profit facilities. Bloomberg News profiled several companies that operate for-profit nursing homes, highlighting allegations of unnecessary and even harmful treatments. We have previously explored how for-profit facilities might cut costs in order to boost profits, resulting in neglect of nursing home patients. Similarly, a desire to increase revenue through Medicare billings might lead to unnecessary, abusive treatments. For people selecting a nursing home for themselves or a loved one, this information could be critical to making an informed decision.

For-profit nursing homes vastly outnumber not-for-profit facilities around the country. According to a report by the Medicare Payment Advisory Commission (MedPAC), about seventy percent of skilled nursing facilities (SNFs), which are generally part of a nursing home, are operated on a for-profit basis, while nearly eighty percent of long-term care hospitals (LTCHs) are for-profit. MedPAC, “Report to the Congress: Medicare Payment Policy” at 17 (March 2012). During the period from 2005 through 2009, the number of for-profit LTCHs increased by eighteen percent, while the number of not-for-profit facilities decreased by eight percent. Id.

HHS’s Office of the Inspector General (OIG) released a report in November 2012 entitled “Inappropriate Payments To Skilled Nursing Facilities Cost Medicare More Than A Billion Dollars In 2009.” The report found that SNFs submitted nearly one-fourth of all erroneous Medicare claims in 2009, resulting in $1.5 billion in “inappropriate Medicare payments.” OIG report at 10. The report further found that SNFs misreported basic information about Medicare beneficiaries in almost half of all claims. Id. at 11. It did not expressly draw a connection between for-profit facilities and inappropriate Medicare claims.

Guardian for Nursing Home Sexual Abuse Victim Files Suit Against Facility and Former Staffer

January 29, 2013 | Lebowitz & Mzhen

The guardian of an Oregon woman, now deceased, who was the victim of sexual assault in a nursing home has filed suit against the nursing home and its incarcerated former employee. The lawsuit claims elder abuse based on the sexual assault, a civil claim allowed under Oregon law, and seeks $1.5 million in damages.

The victim, whose name has not been disclosed by the news media, was a resident of Valley West Health Care Center in Eugene, Oregon. She had suffered several strokes and was unable to speak. She had resided at Valley West for about one year when, on December 22, 2010, an employee reportedly walked into the 56 year-old woman’s room and saw another employee, 61 year-old Robert Price, touching the woman’s genital area. The employee reported the matter to Valley West management, who reportedly contacted police.

Prosecutors charged Price with first-degree sexual abuse and first-degree attempted sexual abuse, both felonies. They contended that the victim was unable to consent due to mental defect, mental incapacitation, and physical helplessness. Price pleaded not guilty to sexual abuse, but later entered a guilty plea on the attempted sexual abuse charge, which carries a lesser mandatory prison sentence. State law defines “attempted” sexual abuse as an act that involves a “substantial step towards completing” actual sexual abuse. Price was sentenced to forty-five months in prison on February 4, 2011, and he remains incarcerated to this day.

Nursing Home Employee Charged with Abuse of Patient

January 25, 2013 | Lebowitz & Mzhen

A certified nursing assistant at a Wisconsin nursing home faces criminal charges for the alleged abuse of a patient over a six-month period. At least two other employees reported seeing her physically assaulting the nursing home resident on multiple occasions. The felony charges could result in a substantial prison sentence.

Two certified nursing assistants at Crest View Nursing Home in New Lisbon, Wisconsin reported witnessing the abuse of an 86 year-old resident by another certified nursing assistant, Ginger Newlin. One of the witnesses reported seeing Newlin, among other acts of assault, verbally abuse the elderly woman and spit in her face. The other witness reported incidents of abuse that occurred at least once a week, beginning in October or November 2011. In addition to physical abuse, she reported hearing Newlin threaten the woman, such as threats to break the woman’s fingers.

Prosecutors charged Newlin with at least two felony counts in June 2012. She faces a charge of abuse of a patient, a broadly-defined offense that could include physical, emotional, or sexual abuse, unconsented treatment, or unreasonable restraint. “Patient” expressly includes nursing home residents and other elder or vulnerable adults. Penalties vary depending on whether the alleged abuse was intentional, reckless, or negligent, and on the degree of harm or risk of harm that resulted from the alleged abuse. The most severe offenses, described as intentional or reckless abuse resulting in death, are treated as Class C felonies. This can result in up to forty years in prison and fines of up to $100,000. Reckless or negligent abuse that is likely to, but does not, cause “great bodily harm” is a Class I felony, punishable by a maximum of three-and-a-half years’ imprisonment and a $10,000 fine.

Nursing Home Maintenance Worker Fired, Arrested for Alleged Sexual Abuse of Resident

January 22, 2013 | Lebowitz & Mzhen

A maintenance worker at an assisted-living facility in Albany, New York was fired and then arrested for the alleged sexual abuse of a 91 year-old resident. Media coverage of the incident has indicated that the man is a registered sex offender with convictions from the 1980’s for rape and other offenses. The owner of the facility reportedly did not know about the maintenance worker’s criminal history or status as a sex offender. The incident also led to the termination of an administrator at the facility and demands by a county official for stricter background check requirements for adult home employees.

An employee at the Loudonville Home for Adults alleged that they witnessed a maintenance worker sexually abusing a 91 year-old female resident on November 30, 2012. The man had reportedly gone to the woman’s room to change a lightbulb, when the employee making the report saw him put his hands down the front of the woman’s shirt without her consent . The nursing home fired the maintenance worker immediately upon hearing of the alleged abuse.

The maintenance worker is a Level 3 sex offender, according to the Times Union. Under the risk levels assigned by the state of New York, Level 3 indicates the highest level of risk for repeat offenses and threats to public safety. The man was reportedly convicted in 1984 for the 1983 rape of a woman in Saratoga County. He spent sixteen years in prison until his parole in 2000. After his community supervision ended in 2008, he was hired at Loudonville.

Police arrested the maintenance worker on December 20, 2012 in connection with the alleged sexual abuse. He allegedly confessed to police after his arrest. He now faces charges for felony endangering the welfare of a vulnerable elderly person and misdemeanor sexual abuse. As of mid-January 2013, he remained at the Albany County Jail, where law enforcement is holding him on $25,000 bond.

Does Quality of Care Differ Between For-Profit and Non-Profit Healthcare Facilities?

January 9, 2013 | Lebowitz & Mzhen

A recent New York Times article examined some of the differences in services between for-profit and non-profit nursing homes. Some research over the past few decades has suggested that for-profit facilities, by seeking to minimize expenses, may be at a disadvantage to nonprofit facilities in terms of quality of care. The article cites a handful of academic papers in support of this argument, which is certain to generate controversy for its criticism of the private sector. As nursing home injury attorneys, we are interested in whether a nursing home’s for-profit or non-profit status affects its duty of care to its residents. Under federal laws and the laws of the state of Maryland, it makes no difference when it comes to a nursing home’s professional obligations.

Eduardo Porter, writing for the New York Times, discussed a study performed in 1984 by two researchers, Bonnie Svarstad and Chester Bond, at the University of Wisconsin-Madison’s School of Pharmacy. The paper, entitled “The Use of Hypnotics in Proprietary and Church-Related Nursing Homes,” is not currently available online, but was cited in a 1988 book, The Nonprofit Economy, by the economist Burton Weisbrod. Svarstad and Bond examined the use of sedatives at for-profit “proprietary” nursing homes and non-profit nursing homes affiliated with churches. They reportedly found that both types of facilities prescribed drugs for their patients at about the same rate, but that the proprietary facilities prescribed doses that were, on average, around four times larger than the dosages at the non-profit facilities. Weisbrod interpreted these figures in stark economic terms, arguing that medications are less expensive than staff, and it is more cost-effective to sedate a patient than to employ caregivers to offer individual attention.

Hidden Cameras Have Helped Prevent Nursing Home Abuse, But May Not Be Solution

December 28, 2012 | Lebowitz & Mzhen

Recently, NBC10 Philadelphia reported that two former workers at a nursing home in Bucks County, Pennsylvania, were arrested after being caught on camera abusing a resident. Nursing home abuse and neglect are unfortunately common occurrences, but rarely do victims have the benefit of direct evidence as here.

According to the story, the daughter of the victim was concerned about the treatment her mother was receiving at the nursing home, so she installed hidden cameras to monitor the room. When she reviewed what was captured on camera, the abuse was indisputable, the news article reports. Both workers are reportedly charged with neglect of a care dependent person, reckless endangerment, simple assault, and harassment.

It should not be incumbent on the friends and relatives of nursing home residents to oversee the care. Nursing homes owe their residents a duty of care, and abuse or negligence by the workers is an unmitigated breach of that duty. Often, friends and family members must rely on circumstantial evidence of abuse or neglect, such as the appearance of unusual activity in bank accounts and credit cards, unexplained bruises and scratches, or bedsores. None of these alone is conclusive evidence of abuse or neglect, but if you see any of this, you should be alert to the possibility.

Although the placement of hidden cameras in this situation appears to have led to a positive outcome, such is not always the case. The recording of individuals without their knowledge or permission violates Maryland state law. Although it might be tempting to do so, particularly if you suspect that people are taking advantage of a friend or loved one, you should pursue lawful means of ascertaining the facts.

Even if nursing homes were to install surveillance cameras to protect its residents from abuse and neglect, that too could lead to unforeseen negative consequences. Just as we’ve seen with the Transportation Security Administration’s abuse of full-body scanners, the workers charged with monitoring the cameras could use them for nefarious purposes.

Former Nursing Home Employee Accused of Stealing From Resident With Dementia

December 21, 2012 | Lebowitz & Mzhen

A former employee of a Wyoming nursing home was recently charged with multiple crimes as a result of her alleged theft of thousands of dollars from a resident with dementia.

Malgorzata Burns reportedly worked at Shepherd of the Valley Healthcare Center in Casper, Wyoming, as a certified nursing assistant. It was during her employment there that she encountered her alleged victim, a 100-year-old resident with dementia. The prosecutors charging Burns allege that she used the man’s bank account to write herself checks and pay her own bills.

According to a report by Joshua Wolfson, a Wyoming Star-Tribune staff writer, the police first investigated the incident after a nonprofit guardianship group found suspicious charges on the man’s bank records. Investigators allegedly discovered additional evidence supporting the guardianship group’s initial finding, and that led to the police charges.

The Star-Tribune reports that Burns no longer works at the nursing home facility and was already on administrative leave at the time of her resignation.

Sometimes we have to place older relatives or friends in a nursing home or assisted-care facility because only they can provide the care and attention an elderly individual requires. Unfortunately, abuse and neglect are frequent problems in many nursing homes throughout the country.

Some of the most common forms of abuse are:
– Physical abuse, such as hitting, force-feeding, or using unnecessary physical restraints;
– Sexual abuse, such as unwanted touching or coerced nudity;
– Financial abuse, such as exploiting assets or property (as was the case here).

– Emotional or psychological abuse, such as using abusive or insulting language or isolating them from available activities.

Neglect may include the failure to feed, bathe, hydrate, or clothe residents; or ignoring basic health requirements, such as moving a bedridden resident to avoid bedsores.

While the case discussed here has risen to the level of criminal charges, the alleged victim also likely has civil causes of action against both the Burns and the facility. Civil lawsuits stemming from nursing home abuse are different from criminal lawsuits in that they are intended to compensate the victim for injuries sustained, rather than punish the perpetrator.

Increasing Numbers of LGBT Seniors May Require Additional Training For Nursing Home Workers

December 11, 2012 | Lebowitz & Mzhen

There is a growing population of lesbian, gay, bisexual, and transgender (LGBT) seniors who face certain challenges in addition to those that come with growing older. Although a growing number of states now have legislation protecting individuals from discrimination on the basis of sexual orientation in areas such as education, employment, and marriage, nursing homes and other assisted care facilities often must decide for themselves how to handle the changing demands.

According to an article in the Boston Globe, 80 percent of LGBT seniors in Massachusetts are afraid to reveal their sexual orientations to care providers, and they are also unlikely to seek continued care for the same reason. These numbers are likely representative of other states, as well.

The problem is complex. While LGBT seniors’ fears are often substantiated, their unwillingness to come out in their assisted living communities makes others unwilling to reveal their sexual orientations either. Providing adequate training to nursing home staff specifically on the issue of LGBT senior care is part of the solution.

It is also important that supervisors be extra diligent in ensuring that LGBT seniors are not subject to abuse or neglect by their supposed caregivers. If an individual wishes not to come out, an abusive employee could use knowledge of their secret to extort the resident or otherwise use it against her. Less obvious would be instances of neglect. A worker might express disapproval of a resident’s sexual orientation by being neglectful of care.

LGBT seniors also face a risk of abuse from their fellow residents. While that risk is present for any resident, LGBT individuals tend to be more susceptible to it. The onus is on the nursing home employees to notice when inter-resident abuse occurs and to stop it.

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.

Study Shows Frequent Administration of Antipsychotics to VA Nursing Home Residents

November 30, 2012 | Lebowitz & Mzhen

A recent study adds to the growing body of research regarding overuse of antipsychotic medications in nursing home patients and the associated risks of severe medical complications and death, with a specific focus on residents of nursing homes run by the U.S. Department of Veterans Affairs (VA). The American Public Health Association’s Medical Care Section published the report in the November issue of its official journal, Medical Care. The VA is reportedly making a variety of efforts to reduce antipsychotic use among patients who would be better served by other treatments. This is particularly true of dementia patients in nursing homes.

The researchers, led by Walid Gellad, M.D., M.P.H., reviewed data from the VA’s 133 Community Living Centers around the country from the period January 2004 through June 2005. The data covered 3,692 veterans 65 years of age and older who were admitted to one or more of these facilities for at least ninety days. They found that 948 patients, just over one-quarter of the total number, received an antipsychotic medication, but that only 59.3% of them had an “evidence-based indication for use.” Patients who displayed aggressive behavior, who were receiving nine or more different medications, who were also receiving antidepressants or dementia medications, and/or who were living in an Alzheimer’s or dementia care unit were more likely to receive antipsychotic drugs. The researchers found that patients with dementia but no recorded history of psychosis were just as likely to receive antipsychotic drugs as those with a documented need for such drugs.