I’ll be attending the 2018 Peggy Lillis Foundation (PLF) National Clostridium Difficile (C. diff) Advocates Summit on Monday, April 9, at the Milken Institute School of Public Health, George Washington University, in Washington, DC.
The summit will be streamed live on Monday from 9 a.m. to 5 p.m. EST. You can register at tiny.cc//2018summit. The summit will offer training for new and experienced advocates with presentations and panel discussions featuring leaders in C. diff prevention and treatment, healthcare policy, state government, patient advocacy, and grassroots organizing.
On Tuesday I’ll join other summit participants who will go to Capitol Hill to provide information about C. diff to federal legislators and staffers. One government policy issue is that C. diff is often omitted as a cause of death on death certificates, and PLF would like to have guidelines established to ensure it is recorded when appropriate.
PLF points out that C. diff is the most common cause of infectious diarrhea in healthcare settings. It caused nearly 500,000 infections in one year, and 29,000 deaths. In nursing homes, the infection interferes with residents’ rehabilitation therapy and recovery as it causes uncontrollable diarrhea, fever, nausea, abdominal cramping, dehydration, loss of appetite, and death in some cases.
The disease, which can be triggered by administration of antibiotics, was a major cause of the demise of my mother, Mary Regina Beerman, who died in 2011 after a short stay in a nursing home.
Former HHS Secretary Price during a meeting with American Health Care Association members. From left are Neil Pruit, Jr., Mike Cheek, Bob Hagan, Price, Tom Coble, AHCA President and CEO Mark Parkinson, and Dr. David Gifford.
Here’s an example showing that elections do matter, and so does access to power.
On June 12, 2017, the American Health Care Association (AHCA), which is an association of operators of 13,000 nursing homes and other facilities for the elderly, issued a news release about their leaders meeting with President Trump’s then-new Secretary of Health and Human Services, Tom Price.
The AHCA’s news release about its meeting with Price said:
“AHCA members discussed with Secretary Price the need for responsible regulation that supports and incentivizes quality improvement. Recent regulatory changes impose both redundant and unnecessary stipulations on providers and are not focused on improving care at the bedside. AHCA members specifically noted that some of the practices detailed in the Requirements of Participation, which the Centers for Medicare & Medicaid Services (CMS) issued last October, interfere with person-centered care and day-to-day operations.”
On July 7, 2017, less than a month after the AHCA met with Secretary Price, CMS, an arm of HHS that oversees nursing homes at the federal level, released a memorandum intended to lessen fines levied against nursing homes that have not complied with health and safety standards. CMS followed up with memos on October 27 and November 24 that reduced civil monetary penalties and delayed for 18 months enforcement of regulations in the Requirements of Participation that were set to take effect just days after the November 24 memo.
I mentioned the Price-AHCA meeting in my book, “Mary Regina’s nursing home,” along with the fact that Price, a former congressman, had received almost a half million dollars in congressional campaign contributions from the health sector, and that Price, also a physician, wanted to limit legal options available to aggrieved health care patients.
AHCA and National Center for Assisted Living (NCAL) President and CEO Mark Parkinson is no lightweight stranger to politics. He is the former governor of Kansas and served as lieutenant governor under former Kansas Governor Kathleen Sebelius, who actually became HHS secretary herself under President Obama. Parkinson is also the developer of 10 elder care facilities.
In a letter released February 20, 2018, 11 Democrat U.S. senators and one independent senator wrote to new HHS Secretary Alex Azar and to Seema Verma, administrator of CMS, explicitly criticizing CMS over the three CMS memoranda from July, October, and November 2017, and characterizing the memoranda as “a string of actions…that will inevitably weaken the safety of our nation’s nursing homes and put patients, many of whom are elderly and wholly reliant on this care, at greater risk.”
The letter from the senators said: “It is abundantly clear that when health and safety are compromised, when errors occur, or in the worst cases, when patients are harmed, there must be a wide range of strong enforcement actions available….That is why we are so alarmed that CMS seems intent on rolling back or delaying enforcement of regulations that are meant to keep nursing homes safe for the patients they serve.
“We will not and cannot accept CMS’ actions that fail to keep nursing homes held to the highest possible standards when it comes to patient care and safety, and we urge CMS to reconsider these policies immediately.”
The letter was signed by Senators Richard Blumenthal (D-CN), Amy Klobuchar (D-MN), Robert P. Casey, Jr. (D-PA), Elizabeth Warren (D-MA), Catherine Cortez Masto (D-NV), Tina Smith (D-MN), Bernard Sanders (I-VT), Kirsten Gillibrand (D-NY), Jack Reed (D-RI), Edward J. Markey (D-MA), Cory A. Booker (D-NJ), and Sherrod Brown (D-OH).
Support for nursing home residents is not a strictly partisan issue. The 11 Democrats who signed the letter are among 47 Democrats in the 100-member Senate. For example, the two Democrat senators from my state of New Mexico were not among the signers. In a case where Republicans demonstrated that nursing home patients are not exclusively a Democrat concern, in Minnesota, a group of Republican state senators led by Karin Housley held a press conference to “demand accountability, transparency, and immediate attention” to state nursing home oversight failures in Minnesota. Their protests led to the resignation of the state health commissioner in December 2017.
The AHCA seems to have demonstrated it can be successful with the current administration in opposing regulations it disagrees with. The organization also contends that Medicaid payments fall about $25 per patient-day or $7 billion a year short of what is needed to meet standards of nursing home care. If what AHCA says is true, then Congress should remedy the funding problem.
But if Congress accepts the AHCA argument and provides more money, the appropriation law should include safeguards such as effective oversight to ensure that the additional money is spent on improving patient care and that it does not generate unreasonable profits for the operators.
I delayed publishing this article and sent it to the AHCA and HHS to give them an opportunity to comment. The AHCA replied that it had nothing to add, but HHS did not respond.
If you’re told to find a nursing home for a loved one, will you be adequately prepared?
In my case, I received a phone call as the Fourth of July weekend approached back in 2011. The call was from a cousin who lived near my mother in a city 1,700 miles away from where I was living. My cousin told me that my mother, who had been living independently at age 85, had tripped over a footstool in her apartment and had broken a hip.
Prior to this, I had made some cursory efforts to prepare for my mother’s decline. I had purchased and browsed a book on eldercare, and I had called A Place for Mom to inquire about assisted living facilities. But after that phone call about my mother’s broken hip, I quickly realized that I was unprepared and utterly incompetent to deal with the nursing home crisis that was unfolding.
In hindsight, I know now that when the ambulance comes for your loved one, it’s too late to prepare adequately for what will come next. Events seem to move as fast as the ambulance. So the time to prepare is now.
After the surgeon repaired my mother’s hip in such a way that it could bear weight, the hospital told me my mother was being released and I had to choose a rehabilitation nursing home that day or the next day. I thought my mother was being released abruptly and prematurely because she still was under the lingering influence of anesthesia. I was told there was a process to appeal the discharge. But I didn’t appeal and I let myself be rushed because I trusted the system; I didn’t want to make trouble; and I was afraid we would have to pay the hospital bills while we appealed if we refused to check out.
I did not realize then the high risk and consequences of choosing the wrong nursing home.
In response to my request, nurses gave me a computer printout with names of 28 nursing homes in the city’s east and south suburbs. They told me they were not allowed to recommend specific nursing homes. Any reasonable person would have tried to prioritize the list and visit the best nursing homes. But the list had no ratings – only names, addresses, and phone numbers, along with notations of whether the nursing homes accepted Medicare and Medicaid.
Driving miles through traffic, I visited two nursing homes, and my cousin visited two. The first nursing home I visited had the infamous smell of urine even at the front entrance. The second had the ambiance of a luxury hotel, and the residents were well dressed as they walked or rolled along the quiet carpeted hallways in wheelchairs. I didn’t think my mother wanted to dress up all the time in what she would call a “swanky” nursing home. (As I learned later, carpets and chandeliers do not equal good care anyway.)
As I did my search under deadline pressure, I didn’t know how the process worked. Would the nursing home I selected even accept my mother? How would the payments work? Would I have to arrange an ambulance to transport my mother?
My cousin and I settled on a nice-looking nursing home in a green suburban garden apartment district near my cousin’s house. My cousin planned to visit my mother often. The hospital arranged for the transfer and had a wheel chair van transport my mother. No one asked for any money.
Without going into detail, my selection of a nursing home was disastrous. Within a month after breaking her hip, my mother was transformed from a mentally sharp and pleasant person into a dying one who was drugged, barely conscious, and plagued with a half dozen illnesses. After 21 days at the nursing home, she was sent to the emergency room of the closest hospital, where she died 10 days later.
I found out too late that the government ranks nursing homes, and that the one I put my mother in was rated “below average” with only two out of a possible five stars. Three minutes down the road was a different nursing home that we could have chosen. It was rated above-average with four stars. Because my mother acquired a contagious illness called clostridium difficile while in the nursing home, she required isolation and I could not get her transferred from the bad nursing home to a better one.
Since Medicare and my mother’s AARP supplemental policy covered the first 100 days of rehab, the cost to us for the two-star nursing home was the same as the four-star, or even a five-star, would have been. That is, virtually no out-of-pocket cost.
Since my mother had her ordeal more than six years ago, one might assume a lot has changed. But many people today still are ill prepared to deal with a nursing home chapter in their life. I recently saw friends face problems similar to those encountered by my mother and I, as their friend or spouse entered a nursing home. They didn’t know ratings existed, or that there was a hospital discharge appeal process. In fact, they knew virtually none of the basic information that could have helped them avoid serious difficulties and possibly create a better outcome.
Anecdotes such as mine and those of my friends are informative, but what about facts?
The Commonwealth Fund reported on August 8, 2017 that most hospital patients who require care from a nursing facility following their discharge receive no information about the quality of available facilities, according to interviews with patients and medical staff.
The title of the Commonwealth Fund report is: “Patients Are Not Given Quality-of-Care Data About Skilled Nursing Facilities When Discharged from Hospitals.”
I was amazed to find out that this problem, which my mother and I encountered in 2011 with severe consequences, continues today.
In the Commonwealth Fund study, a research team interviewed 138 staff members at 16 hospitals and 25 nursing facilities across eight U.S. markets. The team also interviewed 98 patients admitted to 14 of the nursing facilities in five of those markets.
Researchers found that hospitals are not providing patients who need care in skilled nursing facilities (SNF) with data that would allow them to select a high-quality provider. Hospitals should provide these data to help patients make a more informed choice, researchers said.
When researchers asked patients what information they had been given by hospital staff members to help them select a SNF, only four patients said that they had received any information about SNF quality, or instructions about where to find such data. Instead, patients made comments such as this: “I got a two-page list of different facilities that I could go to. It basically was the name, the address, and a phone number.”
You can find nursing home ratings at www.Medicare.gov on the internet. On that site, click on “Find nursing homes.” Look at the ratings and pick a couple of likely candidates nearby, and then visit them. Talk to residents and staff members. Periodically check for changes in their ratings.
But there is so much more to know. For example, there is even a database that tells “How many care givers does your nursing home really have?” I recommend spending a couple of days reading my book, “Mary Regina’s nursing home,” or someone else’s book about the nursing home experience. If I had known the information that’s in my book at the time my mother broke her hip, our experience and the outcome would have been much different. As my fellow nursing home book author Phyllis Ayman (Nursing Homes to Rehabilitation Centers) commented, “Forewarned is forearmed.”
A speech pathologist who has provided patient services in 40 different nursing homes during her career has published an exposé about the excessive lengths to which some nursing homes will go to make more money. The book is entitled, Nursing Homes to Rehabilitation Centers.
I spoke with the author, Phyllis Ayman of Greenwich, CT, for 2 hours recently by phone and we compared notes. While my book, Mary Regina’s nursing home, approaches the subject from the point of view of a patient’s son who happened to be a retired journalist, and describes the inadequacy of the government oversight system, Phyllis has the perspective of a healthcare-provider insider who, as a staunch patient advocate for improved quality care, frequently found herself at odds with nursing home managers and administrators.
Phyllis and I agree that our respective books make a complementary pair.
The theme of Phyllis’s book is that the desire for profits often eclipses what should be the goal: the health and well-being of residents and patients. “Understanding how nursing homes function will help you become more effective advocates and make more informed decisions for yourself and your family,” Phyllis said.
She has sprinkled through the chapters of her book anecdotes that provide a valuable perspective about how the system is often misapplied — prioritizing profit over patients’ welfare. For example, one story relates that management unnecessarily delayed the discharge of a patient who was very anxious to go home just to maximize billable charges. In another example, a patient was coerced to participate in therapy despite being sick.
“Quality-care facilities exist against a landscape of those that exist only to make their owners rich,” said Phyllis.
Nursing Homes to Rehabilitation Centers begins by providing a historical evolution of these facilities and concludes with a comparison of how America’s culture differs from others in terms of their respect for their elders. The book’s subtitle is “What every person needs to know.” The book also includes information ranging from insurance types to the state inspection process and the duties and qualifications of various nursing home staff members.
(This article was originally posted December 21 but was accidentally deleted. It was reposted December 27)
Stunning news developments have put the government oversight system for senior care facilities in Minnesota in the spotlight.
Several Republican state senators decried nursing home oversight problems in Minnesota at a press conference December 12 after a five-part Minneapolis Star-Tribune newspaper series in November described breakdowns in the state Health Department’s handling of elder abuse complaints, and a fired Health Department official filed a whistleblower complaint November 13. Read More
Then, on December 19, the Minnesota Commissioner of Health, Dr. Edward Ehlinger, resigned.
The GOP senators held their press conference to “demand answers from Minnesota Department of Health officials in response to recent reports of abuse and neglect in Minnesota senior care facilities and the failure by the Department of Health and Office of Health Facilities Complaints to follow up on complaints.”
The senators’ press conference came after Nancy Omandi, the director of the Health Regulation Division, which oversees the Office of Health Facilities Complaints, said she was fired after blowing the whistle over a “toxic culture” in her agency that interfered with protection of residents of senior care facilities in the state.
The Star-Tribune reported that as the population of seniors seeking care has increased, the Health Department has been overwhelmed by a dramatic surge in maltreatment complaints. The paper said the department received 25,226 complaints last year about abuse and neglect in senior care facilities, a seven-fold increase since 2010, and that last year the agency investigated only 3 percent of the complaints onsite.
The Office of the Legislative Auditor has begun preliminary investigations into the Office of Health Facilities Complaints, but those findings will not be made available until March.
“We cannot wait until the legislative session in March . . . . Lives hang in the balance,” said Senator Karin Housley, chair of the Senate Aging and Long-Term Care Policy Committee. “I demand accountability, transparency, and immediate attention to addressing these issues.” She said she had been concerned about the problems and pursuing answers from officials since she became committee chair in January.
She was joined at the press conference by five senators including Senator Michelle Benson, chair of the Senate Health and Human Services Finance and Policy Committee.
On December 19, the day of Ehlinger’s resignation, Governor Mark Dayton, a Democrat who has been serving since 2011, gave the Department of Human Services — the largest state department – new authority to direct Health Department staff, make personnel decisions, and implement changes to Health Department work and investigation practices.
The Health Department spokesman did not respond to an invitation to comment.
The prosecution phase of a huge home health care fraud case came to a conclusion November 28 when the last defendant in the case reported to the Federal Bureau of Prisons to begin serving a 120-month sentence.
The defendant, Cynthia Stiger of Dallas, age 52, also has been ordered to pay $23.6 million in restitution. Her attorney, Scott Miller Anderson of Dallas, said an appeal for her is continuing in the Fifth U.S. Circuit Court.
Imagine someone parking in a car outside a homeless shelter and recruiting people with Medicare coverage to sign up for home health care services, sometimes paying recruiters $50 for each beneficiary they found. That was one way in which the fraud scheme recruited Medicare beneficiaries in whose names false claims would be filed.
Once beneficiaries were identified, a nurse would falsify medical documents, making it appear that beneficiaries qualified for home health care services that were not necessary. Plans of care (POCs), also known as CMS Form 485s, were delivered to the office of a physician but were not properly reviewed by any physician.
The falsification of documents process was repeated for thousands of POCs in an office know as a “485 Department” that was essentially a “boiler room” to affix fraudulent signatures and certifications on Form 485s, according to the Department of Justice (DOJ).
Once an individual was certified for home health services, a doctor would perform unnecessary home visits, and order unnecessary medical services by others. Then, fraudulent claims were submitted to Medicare, DOJ said.
The government presented evidence at trial that the scope of this operation was massive. Through the scheme, POCs for 11,000 unique Medicare beneficiaries from more than 500 different home health agencies were approved during 2006-2011.
The prosecution of the home care fraud case began with indictments in 2012 and involved hundreds of millions of taxpayer dollars.
Collectively six defendants, including a medical doctor, have been ordered to pay more than $268 million in restitution jointly and severally and serve from 48 to 420 months in prison; one was sentenced to 3 years probation.
U.S. Attorney John Parker of the Northern District of Texas said on October 27: “This office will continue to use the most sophisticated techniques available to aggressively prosecute those, who, through their fraud, drive up the costs of health care to consumers and taxpayers alike.”
DOJ presented at trial evidence that Dr. Jacques Roy of Rockwall, TX, Cynthia Stiger, Wilbert James Veasey, Jr., of Dallas, and Charity Eleda, a registered nurse, of Rowlett. TX, conspired to defraud Medicare and Medicaid through companies they owned or controlled.
This case reminded me of an unrelated one described by an FBI agent at an Association of Government Accountants luncheon in Philadelphia during the 1980s. The agent said a fraud perpetrator obtained buses and would bus residents of senior citizen facilities to a meeting hall where they would play cards or bingo (I can’t recall which). Then the perpetrator would bill Medicare, calling the activity at the hall “therapy,” the agent said.
Suspected fraud against Medicaid or Medicare can be reported to the U.S. Department of Health and Human Services’ Office of Inspector General at 1-800-HHS-TIPS (1-800-447-8477) and the agency’s website https://oig.hhs.gov/fraud/report-fraud/.
ALBUQUERQUE – Paul Donisthorpe, 62, pleaded guilty November 27 in federal court in Albuquerque, N.M., to wire fraud and money laundering charges arising out of a fraudulent scheme to embezzle more than $4.8 million from client trust accounts managed by Desert State Life Management (DSLM), a trust company he operated and controlled. Donisthorpe entered the guilty plea under a plea agreement that recommends that he be sentenced to 8 to 12 years of imprisonment followed by a term of supervised release to be determined by the court. The plea agreement also requires that Donisthorpe pay $4,812,857 in restitution to the victims of his crimes and that he forfeit the proceeds of his criminal activities.
This case is not about nursing homes per se but it focuses attention on a problem that can menace individuals and their families when someone becomes limited in his or her ability to manage their own affairs. It occurred in my own home state.
“This was a heartbreaking case of an individual stealing millions of dollars from elderly, disabled, and other New Mexicans with special needs who depended on him to make sure their rent, medical bills, and living expenses were paid,” said Special Agent in Charge Terry Wade of the Albuquerque Division of the FBI.
According to the felony information document, Donisthorpe was the sole owner and operator of DSLM, a trust company that provided trustee and representative payee services for individuals requiring assistance with their financial affairs. As detailed in the felony information document, Donisthorpe perpetuated a decade-long fraudulent scheme pursuant to which he transferred more than $4.8 million from client trust accounts managed by DSLM into accounts he controlled and then used the money for his own personal purposes.
Skilled nursing care provider Catholic Health System, Inc., of Buffalo — some of whose facilities are currently rated highly by the federal government — has agreed to pay $6 million to resolve federal false-claims allegations against a subsidiary.
Catholic Health continues to dispute the allegations. Catholic Health said it agreed to the settlement with the U.S. Department of Justice (DOJ) because the cost of continuing to defend the case would have diverted more resources from patient care.
The Office of the U.S. Attorney for the Western District of New York said that from 2007 through 2014, Catholic Health submitted, or caused to be submitted, false claims to Medicare for rehabilitation therapy services. Catholic Health was named a defendant in a whistleblower lawsuit brought under the False Claims Act. Whistleblowers can receive a portion of the proceeds of any settlement or judgment awarded against a defendant.
DOJ said services were administered at levels that were unreasonable, not medically necessary, and unsupported by the medical records.
“A healthcare system that is infected with dishonesty is susceptible to one of the worst afflictions known to mankind – human greed,” said Acting U.S. Attorney James P. Kennedy, Jr. on October 27. “Today’s settlement demonstrates our unwavering commitment to eradicating this cancer from our federal health care programs.”
DOJ said the claims resolved by the settlement are allegations only, and there has been no determination of liability.
Catholic Health said the government’s case was based on findings of alleged “overutilization” in a small sample of cases. It said the government relied on national averages and “highly subjective” determinations to evaluate claims.
In a news release, Catholic Health contended that while its rehabilitation patients received more intense therapy on average than patients at other facilities, its patients’ stays “were significantly shorter than national averages — meaning the more intense level of therapy services resulted in Catholic Health patients returning home faster.”
“These allegations were never about the quality of care or the outcomes our patients achieved,” said a Catholic Health spokesman. “We believe the care provided was appropriate. . . . Defending these types of subjective allegations of overutilization, however, requires an unsustainable and ultimately unacceptable allocation of financial and personnel resources.”
Catholic Health said two of the facilities involved in the case are currently rated 5 stars — the highest possible — by the U.S. Centers for Medicare and Medicaid Services. A third is no longer owned by Catholic Health.
The settlement was announced by DOJ on October 27, but this post was delayed to obtain a response from Catholic Health. The complete DOJ and Catholic Health news releases are available under the heading, “Litigation-Related Documents” on my website at https://wbeerman.com
(The following article is from the e-newsletter of the California Advocates for Nursing Home Reform. (www.canhr.org) It contains links at the bottom of the article to information from all 50 states and the District of Columbia made more easily accessible by the Long Term Care Community Coalition.)
Interested in knowing about registered nurse (RN) or weekend staffing levels at a nursing home or how often it falls below California minimum staffing requirements? Data released . . . by the Centers for Medicare and Medicaid Services (CMS) can help answer these important questions and more. The data is the first installment of nursing home staffing information CMS is collecting pursuant to the Affordable Care Act that is intended to give the public a more complete and accurate picture of actual staffing levels in Medicare and Medicaid certified nursing homes.
Unlike other staffing data reported by nursing homes, the new data is intended to be verifiable through linkages to facility payroll systems that can be audited. CMS plans to integrate the new data into Nursing Home Compare and its nursing home rating system, but for now has released it in a separate data set that reports daily staffing levels at most, but not all, nursing homes.
To make this information more accessible for consumers, the Long Term Care Community Coalition (LTCCC) downloaded the data for the most recent quarter – the 2nd quarter of 2017 – and computed the hours of care per resident day for all care staff and for RNs. The data compiled by LTCCC and its press release –Does Your Nursing Home Have Enough Care Staff? – are available on its website.
A Pittsburgh area institutional pharmacist who filled prescriptions for nursing home residents was sentenced in federal court to 2 years probation and 150 hours of community service on October 17 after being convicted of conspiracy in a fraud scheme. According to the U.S. Department of Justice (DOJ), MedFast pharmacy drivers picked up leftover drugs from nursing homes. Then, the Beaver County manager for MedFast oversaw repackaging of the picked-up drugs for reuse in other prescriptions.
DOJ said drugs from different manufacturers with different lot numbers and different expiration dates were commingled in pharmacy stock bottles after the pharmacy picked them up from nursing homes. When it was necessary for pharmacy employees to enter lot numbers and expiration dates as they filled new prescriptions, the employees were instructed to use inaccurate and false information, rendering the drugs “misbranded,” according to DOJ. In addition, DOJ said Medicare, Medicaid, and other insurers were not reimbursed for the unused drugs, but they were billed for the illegal, “misbranded” leftover drugs used to fill new prescriptions.
This might seem like an innocuous case — a victimless crime — and possibly no patients were harmed in the MedFast case, but the case called to mind an unrelated occurrence in which my mother was stricken with critical digoxin poisoning in July 2011.
After my mother’s nursing home called the EMTs and sent her to the hospital emergency room because she was apparently unconscious and having difficulty breathing, the hospital found her to be suffering from critical-level digoxin poisoning.
The poisoning could have been caused by a combination of her significant loss of weight during a short stay in the nursing home and the nursing home’s inadequate monitoring of her medication dosages as her weight declined. Digoxin’s effects are extremely dose-specific and too much can lead to serious and potentially life-threatening digitalis toxicity.
I found out that a number of digoxin recalls had occurred. In April 2008, a recall was issued for all lots of a generic version of digoxin called Digitek because some of the tablets were twice as thick as they were supposed to be. In another case, a specific lot of digoxin was recalled because some tablets were thicker than others.
All tablets of a specific brand Digoxin, USP, 0.125 mg, and Digoxin, USP, 0.25 mg, distributed prior to March 31, 2009, which were not expired and were within the expiration date of September, 2011, were recalled because they might differ in size and therefore could have had more or less of the active ingredient, digoxin.
I found myself wondering whether my mother’s nursing home might have had some of the unexpired — but recalled — defective digoxin tablets on hand in July, 2011, when she suffered poisoning. Could my mother have been given drugs from recalled lots that were double the supposed strength? Based on my experience with the particular nursing home and the Pennsylvania Department of Health back then, I did not expect they would help me look into the matter, so I did not pursue it. I also observed that the nursing home ordered considerable quantities of some drugs for my mother shortly before the end of her stay there, and I wondered what the nursing home did with such leftover drugs, which had been paid for by Medicare.
It seems that comingling of drugs from different lots could make it easier for recalled drugs to slip through a recall.
In an unrelated but interesting matter involving digoxin, in 2003, a nurse, Charles Cullen, who is suspected of being the most prolific serial killer in American history, admitted to killing as many as 40 hospital patients by using overdoses of heart medications – including digoxin – at hospitals in New Jersey and Pennsylvania.
The DOJ news release about the sentencing of the Beaver County pharmacist can be found at my website, https://wbeerman.com, under the heading “Related Court Documents,” along with other information about nursing homes and government oversight of nursing homes.
In a further development regarding an article I posted October 9, Bertha Blanco, a former regulatory specialist with the Florida oversight agency for skilled nursing facilities (SNFs) and assisted living facilities (ALFs), filed a guilty plea October 13 on a charge that, as a public official, she corruptly solicited and received bribes directly or indirectly from operators of SNFs and ALFs.
Blanco has admitted selling to SNF and ALF operators information about complaints filed on behalf of patients/residents of SNFs and ALFs with the State of Florida’s SNF and ALF oversight agency. She also admitted that she sold schedules for unannounced facility inspections planned by the agency.
She could face up to 10 years imprisonment at a sentencing hearing December 8, but as part of a plea agreement filed in Federal Court in Miami, the U.S. Department of Justice has agreed to recommend a sentence reduction based on Blanco’s acceptance of responsibility. The plea agreement states that the value of the information Banco sold was at least between $250,000 and $550,000, part of which went to middlemen. Blanco herself obtained $100,000 of the money, according to the plea agreement. Although she received only part of the money paid to middlemen, the plea agreement states Blanco is responsible by law for making restitution of $441,000.
My October 9 article and certain related court documents are available at https://wbeerman.com
How much bribe money might someone be willing to pay for a confidential schedule of upcoming “unannounced” state oversight inspections at nursing homes?
Three thousand dollars per schedule was the going price in one case in Florida, according to an affidavit filed recently by a special agent for the U.S. Department of Health and Human Services, Office of the Inspector General (OIG).
One Certified Nurse’s Aide (CNA) pointed out that if nursing homes knew the inspectors were coming, the inspectors didn’t get to see what normal life was like for residents and employees of those nursing homes. Instead, inspectors were presented with a sanitized version of conditions.
When I was a kid in McKeesport, Pennsylvania, in the 1960s, people hanging out in my pool hall knew when the county detectives’ racket squad was about to raid my town’s bookmaking joints and the prostitution district. The bookies and pimps certainly knew too. The raids were a joke, and after the raids the racketeers went back to business as usual. I asked rhetorically in my book whether someone similarly was tipping off some nursing homes about looming inspections.
At the time my book was published, I had no hard evidence that any nursing home was paying bribes to a state oversight official.
However, I recently discovered that the U.S. Department of Justice has filed an affidavit in federal court in Florida alleging that a Florida state employee had been taking cash bribes for years in exchange for confidential information that she provided to middlemen for nursing home operators. The information included “patient complaints and the unannounced inspection schedules” from her agency. The nursing homes would use the information to prepare for the inspections and “fabricate and falsify medical paperwork and temporarily remedy deficiencies.”
The agency was the Florida Agency for Health Care Administration (AHCA), which administers Florida’s Medicaid program and does the state’s nursing home inspections. On October 6, 2017 the defendant was arraigned on a charge of “Receipt of a bribe by agent of an organization receiving federal funds.”
According to the affidavit, the AHCA employee, Bertha Blanco, admitted taking bribes, and middlemen admitted passing bribe money to her.
A middleman said he was getting $200 for each patient complaint and $3,000 for each AHCA inspection schedule, and was passing some of the money on to Blanco, according to the affidavit.
This does not mean that anything like this was happening in Pennsylvania or New Mexico, or anywhere else. Certainly most nursing home operators and state inspection agency personnel are honest. They deserve the benefit of the doubt. And it is unfortunate that the conduct of one government employee casts a shadow on others. The office of the Pennsylvania secretary of health told me:
“The department is required to survey (inspect) each facility with a 12- to 16-month window in order to meet state and federal requirements. The department very conscientiously ensures that survey schedules are not disclosed to facilities and makes every effort to vary the timing of surveys to minimize the ‘predictability’ of the next one. The department is not aware of information about survey schedules or timing being disclosed to facilities.”
Nevertheless, the Florida nursing home bribery case and the testimony of confidential witnesses in other states are reason to suspect something might be seriously wrong if nursing homes know when inspectors are coming. I view the Florida bribery case in the context of my unsatisfactory personal experience with the Pennsylvania Department of Health after I asked it to investigate my mother’s nursing home, and the national statistics showing that complaints about nursing homes have gone up while enforcement actions have gone down substantially.
Federal authorities and attorneys general such as those in Florida, Pennsylvania, and New Mexico, deserve to be commended for trying to hold bad nursing homes or corrupt officials accountable. I hope they all follow through when they are told by confidential witnesses, such as CNAs, that nursing homes knew when inspectors were coming. Investigators should find out who told the CNAs the inspectors were coming, and who told the person who told the CNAs. And who told that person.
A copy of the OIG agent’s affidavit in the Blanco case is available under the heading “Litigation-Related Documents” at www.wbeerman.com
The general trend in which more and more people file complaints about nursing homes — a trend that spans more than a decade – seems to be continuing.
The U. S. Department of Health and Human Services (HHS), Office of the Inspector General (OIG), issued a “data brief” on September 28, 2017 announcing that, “Overall, states received one-third more nursing home complaints in 2015 than in 2011,” while the number of nursing home residents decreased 3 percent.
The report shows essentially no change in the general trend reported in my book, “Mary Regina’s nursing home,” which was published on July 9, 2017. The book covers the period 2005 to 2014, when the number of complaints went up from 52,211 to 61,466, according to a Government Accountability Office (GAO) analysis of data from the Centers for Medicare and Medicaid Services (CMS). According to the just-released report from the OIG, the number of complaints during 2015 was 62,790. CMS reporting of such data normally lags a year or more behind the current calendar year.
My book also reported that during the 2005-2014 timeframe, when complaints went up 21 percent, the number of citations issued by government nursing home oversight agencies for serious deficiencies ironically went down 41 percent across the U.S., according to GAO.
OIG did not address the issue of citations in its September 28 report, but it said it did not know whether an increase in complaints represents a decrease in quality of care. OIG said “other factors may contribute to an increase in complaints, such as more accessible and user-friendly options to file complaints, better tracking of complaints, or possibly an increased willingness among consumers to report on their nursing home experiences.“
My book covers a number of possible reasons for the illogical relationship between increasing complaints and decreasing citations, including a CMS announcement that the “Great Recession” was largely responsible for the decrease in citations. But whatever the cause for the increase in complaints, they represent real concerns raised by real people who felt motivated to complain.
The American Health Care Association, an association of nursing home operators, has not yet responded to my request for their comment on the OIG report, but my book quotes a nursing home attorney who said the number of complaints should be viewed in the context of how many people reside in nursing homes, which is about 1.4 million.
Individual state trends for nursing home complaints varied between 2011 and 2015, the OIG said. Thirty-five states had increases in the number of complaints during this time, with increases of 50 percent or more in 11 of those states. In contrast, 16 states had decreases in the number of complaints, with decreases of 50 percent or more in five of those states.
The OIG report said that during the period it reviewed, states conducted nearly all of the required onsite investigations of serious complaints. A handful of states accounted for about half of the late investigations of the most serious nursing home complaints, with most such late investigations being weeks late, the OIG said. The report said states substantiated almost one-third of the most serious nursing home complaints each year.
The OIG data brief can be found under the category “Related Audit Reports and Other Documents” at https://wbeerman.com
Are some nursing home residents still in jeopardy today, after countless scandals over the decades? Reports that many of them ARE, indeed, come from various sources. Among them are a critical newsletter article about California nursing homes, and a study report that says hospitals don’t give patients enough information to enable them to competently choose a good skilled nursing home:
“Although California spends nearly $5 billion in Medi-Cal funds per year on nursing home care, discrimination against Medi-Cal-eligible residents is systemic, and the care provided to nursing home residents is getting worse every year.
“Poor regulatory oversight, minimal monetary penalties, repeat violations without consequences, and the never-ending quest by the nursing home industry for more money – these are only a few of the reasons that care is so bad and that demand for nursing home care has decreased every year.
“Too many California nursing homes don’t want to keep residents once they’ve sucked all of the Medicare rehab funds from them – dumping (mainly Medi-Cal) residents into acute care hospitals as a matter of course and refusing to take them back regardless of administrative law decisions to the contrary.
“Meanwhile, California’s Department of Public Health – the agency charged with providing regulatory oversight of nursing homes – has put on blindfolds, refusing to acknowledge the grievous violations that harm and, often kill, nursing home residents….
“A constant litany of sexual, verbal and physical abuse, neglect, refusal to provide pain medication, refusal to answer call buttons, allowing residents to lay in their own feces and urine, bedsores, falls resulting in broken bones and deaths and hundreds of preventable acute care hospital admissions at cost of millions of dollars – this is the status of nursing homes in California in 2017.”
National – Inadequate Hospital Discharge Information
The Commonwealth Fund reported on August 8, 2017 that most hospital patients who require care from a nursing facility following their discharge receive no information about the quality of available facilities, according to interviews with patients and medical staff. With hospitals now held partly responsible for their patients’ care after discharge, Medicare will likely need to amend or clarify its rules to encourage hospitals to recommend higher-quality facilities to their patients, the report said.
The title of the report is: “Patients Are Not Given Quality-of-Care Data About Skilled Nursing Facilities When Discharged from Hospitals.”
I was amazed to find out that this problem, which my mother and I encountered in 2011, with severe consequences, continues today. Medicare rates nursing homes on a scale of one to five, with one being far below average, two being below average, and three, average. I found in a judgmental sample of my own that close to half of the nursing homes in two large chains operating in Pennsylvania were below average (rated one or two), so uninformed consumers are at high risk of ending up in a below average nursing home.
In the Commonwealth Fund study, a research team interviewed 138 staff members at 16 hospitals and 25 nursing facilities across eight U.S. markets. The team also interviewed 98 patients admitted to 14 of the nursing facilities in five of those markets.
Researchers found that hospitals are not providing patients who need care in skilled nursing facilities (SNF) with data that would allow them to select a high-quality provider. Hospitals should provide these data to help patients make a more informed choice, researchers said.
When researchers asked patients what information they had been given by hospital staff members to help them select a SNF, only four patients said that they had received any information about SNF quality or instructions about where to find such data. Instead, patients made comments such as this: “I got a two-page list of different facilities that I could go to. It basically was the name, the address, and a phone number.”
While federal statutes protect the right of Medicare patients to choose their own providers, nothing in the law prevents hospitals from helping patients make an informed choice, the researchers said. The report authors recommend adoption of proposed changes to Medicare’s conditions of participation to require hospitals to share data on facility quality with patients. Alternatively, the Centers for Medicare and Medicaid Services could clarify the limits on what hospitals may do to aid patient choice. Adopting a less strict approach to patient choice, the authors argue, would allow patients to make better, more-informed choices that would lead to improved outcomes for patients and hospitals alike.
HARRISBURG — Continuing the fight to protect the most vulnerable Pennsylvanians from predatory business practices, Attorney General Josh Shapiro today called on the Centers for Medicare and Medicaid Services to reject efforts to roll back protections that allow nursing home patients who have been victimized to have their day in court.
Attorney General Shapiro and 16 other Attorneys General sent comments to the Center for Medicare and Medicaid Services, recommending that CMS keep in place a rule that prohibits pre-dispute arbitration clauses in nursing home and long-term care contracts. Pre-dispute arbitration clauses require seniors to waive their rights to go to court to resolve any dispute with a nursing home.
Pennsylvania is home to 2.2 million seniors and has the 5th highest number of seniors in the country, behind only Florida, Texas, New York and California.
“I have the responsibility of protecting our most vulnerable citizens, including seniors living in long-term nursing care facilities,” Attorney General Shapiro said. “If we allow nursing homes to include pre-dispute arbitration clauses in admission contracts, our seniors will have less access to the courts and to justice. I won’t stand by while seniors lose their rights.”
In the comments sent Monday to CMS, the attorneys general state: “Pre-dispute binding arbitration agreements in general can be procedurally unfair to consumers, and can jeopardize one of the fundamental rights of Americans; the right to be heard and seek judicial redress for our claims. This is especially true when consumers are making the difficult decisions regarding the long-term care of loved ones. The contractual provisions may be neither voluntary nor readily understandable for most consumers.”
In 2015, states submitted comments to CMS in support of a proposed regulation to bar pre-dispute arbitration clauses in long-term care contracts. CMS issued its final rule in October 2016, which prohibited the use of pre-dispute arbitration clauses, citing the comments of the attorneys general in support.
Following the final rule by CMS, the American Health Care Association (AHCA) and a group of nursing homes filed suit against the regulation. In June 2017 and in response to the AHCA lawsuit, CMS proposed reversing the rule and removing the prohibition on pre-dispute arbitration clauses in long-term care contracts.
Attorney General Shapiro was joined by the attorneys general of Maryland, California, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Iowa, Maine, Massachusetts, Minnesota, New York, North Carolina, Oregon, Vermont and Washington in today’s filing.
On August 1, 2017, the Centers for Medicare and Medicaid Services (CMS) announced it was giving a rate raise to Skilled Nursing Facilities (SNF) of 1 percent, or a an estimated total raise of $370 million for Fiscal Year 2018. For perspective, nursing home operators have been contending Medicaid payments fall $23 to $25 per resident per day, or $7 billion a year, short of what they need to provide adequate care.
CMS issued the following statement.
The 2018 Skilled Nursing Facility (SNF) Prospective Payment System Final Rule increases Medicare payment rates by 1.0 percent for FY 2018, as statutorily-required by section 411(a) of the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA), which is an aggregate impact of $370 million from payments in FY 2017. The rule revises and rebases the SNF market basket index by updating the base year data from FY 2010 to 2014 and by adding a new cost category for Installation, Maintenance, and Repair Services. The rule also finalizes updates to the SNF Quality Reporting Program, including replacing the pressure ulcer measure with an updated version, adopting new functional status measures and publicly displaying new measures. In addition, it finalizes policies for the SNF Value-Based Purchasing Program for FY 2019, the first year this program will impact Medicare payments and the requirements regarding the composition of professionals for the survey team.
Nursing Home Oversight System Has Blind Spots, Author Says
NEWS PROVIDED BY William J. Beerman, Sr. Jul 12, 2017, 10:00 ET
LAS CRUCES, N.M., July 12, 2017 /PRNewswire/ -- As debates rage over the future of health care in America, a new book claims that the government's current system for overseeing nursing homes allows unhealthy nursing home conditions to persist or recur year after year.
"The oversight system has blind spots," said retired journalist and certified internal auditor William J. Beerman, Sr., who has just released a 380-page book entitled "Mary Regina's nursing home."
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"Sometimes nursing home inspectors see the violations. Sometimes they don't," Beerman said.
For example, he said, confidential witnesses in lawsuits ongoing in 2017 reported that it was not unusual for nursing homes to cover up deficiencies after they somehow found out in advance that inspectors were coming for "unannounced" inspections. "Some nursing homes bring in extra staff before 'surprise' inspections and scramble to conceal violations. Inspectors don't always see how residents normally live," said Beerman.
Beerman spent 20 days at his mother's bedside in a nursing home. He was disappointed by the way the state health department handled his complaints about the care she received. After her death in 2011, Beerman began researching how nursing homes are regulated. His book is named for his mother, Mary Regina.
Beerman's research covered lawsuits filed against nursing home chains by attorneys general in New Mexico and Pennsylvania, and audits by Pennsylvania auditors general and the U. S. Government Accountability Office. The lawsuits encompassed 65 nursing homes and more than a million patient-days of nursing home care.
"Enforcement fluctuates wildly," Beerman said. "In one state, under one governor, the health department took 171 enforcement actions against nursing homes in 2003, but in 2012, under the next governor, it took only two." In 2015, the enforcement number was 52. Nationally, consumer complaints rose 21 percent from 2005-2014 while citations went down 41 percent, Beerman said. Fines in the U.S. were down 10 percent from 2015-2016.
Nursing homes are rated on a scale of one to five stars, with many above average (three stars) and many below. Beerman said he was surprised to discover that the Medicare.gov Five-Star rating system does not incorporate evaluations from nursing home residents.
An outline of the book, including a list of notable issues covered, is posted on Beerman's website, https://wbeerman.com
The book was published July 9 on Amazon.com.
SOURCE William J. Beerman, Sr.
Related Links
(L-R) Neil Pruitt, Jr, Mike Cheek, Bob Hagan, Secretary Tom Price, Tom Coble, Mark Parkinson, and Dr. David Gifford
6/12/2017
Washington, D.C. – Last Monday, American Health Care Association (AHCA) President and CEO Mark Parkinson joined association members to meet with the Secretary of Health and Human Services (HHS) Tom Price, M.D., to discuss challenges the long term care profession faces as the nation’s population ages and the importance of maintaining access to quality long term care.
AHCA members discussed with Secretary Price the need for responsible regulation that supports and incentivizes quality improvement. Recent regulatory changes impose both redundant and unnecessary stipulations on providers and are not focused on improving care at the bedside. AHCA members specifically noted that some of the practices detailed in the Requirements of Participation, which the Centers for Medicare & Medicaid Services (CMS) issued last October, interfere with person-centered care and day-to-day operations.
“We commend Secretary Price’s efforts to work with us to empower our members to achieve our goal of providing quality care for seniors and individuals with disabilities,” said Parkinson. “AHCA will continue to advocate for responsible regulation that advances our mission of improving lives by delivering solutions for quality care.”
Secretary Price and AHCA members also discussed significant improvements in key quality measures across the long term care profession. In 2012, the Association launched its Quality Initiative, which challenges providers to improve key quality performance measures. Since the Initiative’s inception, member providers have successfully prevented more than 79,000 individuals from returning to the hospital within 30 days of their skilled nursing center stay and have reached or surpassed a nationwide goal in safely reducing antipsychotic usage by at least 30 percent.
Members in attendance at the meeting with Secretary Price included Tom Coble, Chair of AHCA Board of Governors, and President and CEO of Elmbrook Management Company; Bob Hagan, President of Sterling Healthcare, Inc.; Neil Pruitt, Jr., Chairman and CEO of PruittHealth.
The American Health Care Association and National Center for Assisted Living (AHCA/NCAL) represent more than 13,000 non-profit and proprietary skilled nursing centers, assisted living communities, sub-acute centers and homes for individuals with intellectual and developmental disabilities. By delivering solutions for quality care, AHCA/NCAL aims to improve the lives of the millions of frail, elderly and individuals with disabilities who receive long term or post-acute care in our member facilities each day. For more information, please visit www.ahca.org or www.ncal.org.
JUSTICE NEWS
Department of Justice
Office of Public Affairs
June 16, 2017
Genesis Healthcare Inc. Agrees to Pay Federal Government $53.6 Million to Resolve False Claims Act Allegations Relating to the Provision of Medically Unnecessary Rehabilitation Therapy and Hospice Services
The Justice Department announced today that Genesis Healthcare Inc. (Genesis) will pay the federal government $53,639,288.04, including interest, to settle six federal lawsuits and investigations alleging that companies and facilities acquired by Genesis violated the False Claims Act by causing the submission of false claims to government health care programs for medically unnecessary therapy and hospice services, and grossly substandard nursing care. Genesis, headquartered in Kennett Square, Pennsylvania, owns and operates through its subsidiaries skilled nursing facilities, assisted/senior living facilities, and a rehabilitation therapy business.
“We will continue to hold health care providers accountable if they bill for unnecessary or substandard services or treatment,” said Acting Assistant Attorney General Chad A. Readler of the Justice Department’s Civil Division.
“Today’s settlement demonstrates our unwavering commitment to protect federal health care programs against unscrupulous providers.”
This settlement resolves four sets of allegations. First, the settlement resolves allegations that from April 1, 2010 through March 31, 2013, Skilled Healthcare Group Inc. (SKG) and its subsidiaries, Skilled Healthcare LLC (Skilled LLC) and Creekside Hospice II LLC, knowingly submitted or caused to be submitted false claims to Medicare for services performed at the Creekside Hospice facility in Las Vegas, Nevada by: (1) billing for hospice services for patients who were not terminally ill and so were not eligible for the Medicare hospice benefit and (2) billing inappropriately for certain physician evaluation management services.
Second, this settlement resolves allegations that from Jan. 1, 2005 through Dec. 31, 2013, SKG and its subsidiaries, Skilled LLC and Hallmark Rehabilitation GP LLC, knowingly submitted or caused to be submitted false claims to Medicare, TRICARE, and Medicaid at certain facilities by providing therapy to certain patients longer than medically necessary, and/or billing for more therapy minutes than the patients actually received. The settlement also resolves allegations that those companies fraudulently assigned patients a higher Resource Utilization Group (RUG) level than necessary. Medicare reimburses skilled nursing facilities based on a patient’s RUG level, which is supposed to be determined by the amount of skilled therapy required by the patient.
Third, this settlement resolves allegations that from Jan. 1, 2008, through Sept. 27, 2013, Sun Healthcare Group Inc., SunDance Rehabilitation Agency Inc., and SunDance Rehabilitation Corp. knowingly submitted or caused the submission of false claims to Medicare Part B by billing for outpatient therapy services provided in the State of Georgia that were (1) not medically necessary or (2) unskilled in nature.
Finally, this settlement resolves allegations that between Sept. 1, 2003 and Jan. 3, 2010, Skilled LLC submitted false claims to the Medicare and Medi-Cal programs at certain of its nursing homes for services that were grossly substandard and/or worthless and therefore ineligible for payment. More specifically, the settlement resolves allegations that Skilled LLC violated certain essential requirements that nursing homes are required to meet to participate in and receive reimbursements from government healthcare programs and failed to provide sufficient nurse staffing to meet residents’ needs.
SKG and its subsidiaries were acquired by Genesis after the conduct at issue in this settlement. Sun Healthcare Group Inc., SunDance Rehabilitation Agency Inc. and SunDance Rehabilitation Corp. were acquired by Genesis in December 2012.
“Safeguarding federal health care programs and patients is a priority,” said Acting U.S. Attorney Steven W. Myhre for the District of Nevada. “Today’s settlement is an example of the U.S. Attorney’s Office’s commitment to holding medical providers accountable for fraudulent billing of medically unnecessary treatments and services. We are committed to protecting federal health care programs, including Medicare, TRICARE, and Medicaid, which are funded by taxpayer dollars.”
“We are committed to protecting the federal health care programs and the patients who are enrolled in them,” said U.S. Attorney Brian J. Stretch for the Northern District of California. “We will continue to vigorously pursue companies and individuals who provide care that is grossly deficient or unnecessary.”
“Health care providers that falsify claims for unauthorized or unnecessary services steal precious taxpayer dollars, and we will aggressively seek to recover those funds for the program that needs them,” said U. S. Attorney John Horn for the Northern District of Georgia.
“It’s disturbing when health care companies bill Medicare and Medicaid to care for vulnerable patients, but provide grossly substandard care and medically unnecessary services just to boost company profits,” said Special Agent in Charge Steven J. Ryan of the Department of Health and Human Services, Office of Inspector General (HHS-OIG). “We will continue to crack down on medical providers who betray the public’s trust and the needs of vulnerable patients through fraudulent billing and irresponsible practices.”
“At a time when the cost of healthcare weighs heavy on many taxpayers, it is imperative that people who illegally bill our healthcare system are held accountable and forced to pay restitution,” said FBI Atlanta Special Agent in Charge David J. LeValley. “This case is an example of how committed the FBI and its partners are to keeping healthcare providers from abusing the system.”
The settlement, which was based on the company’s ability to pay, resolves allegations originally brought in lawsuits filed under the qui tam, or whistleblower, provisions of the False Claims Act by Joanne CretneyTsosie, Jennifer Deaton, Kimberley Green, Camaren Hampton, Teresa McAree, Terri West, and Brian Wilson, former employees of companies acquired by Genesis. The act permits private parties to sue on behalf of the government for false claims for government funds and to receive a share of any recovery. The government may intervene and file its own complaint in such a lawsuit. The whistleblowers will receive a combined $9.67 million as their share of the recovery in this case.
This matter was handled by the Civil Division’s Commercial Litigation Branch; the U.S. Attorneys’ Offices for the Northern District of California, the Northern District of Georgia, the Western District of Missouri, and the District of Nevada and HHS-OIG.
The claims resolved by the settlement are allegations only; there has been no determination of liability.
The cases are docketed as United States, ex rel. Cretney-Tsosie v. Creekside Hospice II, LLC, Case No. 2:13-cv-167-HDM (D. Nev.); United States ex rel. McAree v. SunDance Rehabilitation Corp., Case No. 1:12-CV-4244 (N.D. Ga.); United States, ex rel. West v. Skilled Healthcare Group Inc., et. al., Case No. 1102658-ED (N.D. Cal.); United States ex rel. Deaton v. Skilled Healthcare Group, Inc. et al., Case No. 4:14cv-00219 (W.D. Mo.); and United States ex rel. Wilson v. Skilled Healthcare Group, Inc. et al., Case No. 14cv-860 (W.D. Mo.).
New Mexico Appeals Court Upholds $2.5 Million Jury Award to Family in Nursing Home Case.
The decision, by the Court of Appeals of the State of New Mexico, came in the case of the Estate of Inez Martinez vs the Las Cruces, NM nursing home, Village at Northrise (VNR) and parent companies.
On April 15, 2010, Inez Martinez, age 82, was admitted to VNR where she was to recuperate from pacemaker implantation surgery for an anticipated stay of 20 days, according to the court decision. She was discharged on May 5, 2010, by order of her attending physician, who was credentialed to see patients at the facility. Martinez died shortly thereafter as a result of sepsis caused by a wound infection (staph) at her incision, according to the court decision.
The doctor never examined Martinez’s incision during her stay at VNR, and it was later revealed at trial that attending physicians were not required to come to the facility to see their patients, the decision said. Martinez did see physicians on two occasions: first on April 23, when her cardiologist found that her incision was healing well, and again on May 3, when she met with her attending physician at his office and was cleared for discharge. But by all accounts, the attending physician ordered Martinez’s discharge without removing her bandage, making that off-site meeting effectively useless for diagnosing a wound infection, according to the court decision.
On May 4, after the off-site meeting but prior to discharge, a nurse at VNR noted “scabbed pus” around Martinez’s incision. The nursing staff applied antibiotic ointment, covered the incision with sterile gauze, and notified the attending physician by fax of what had been observed and what had been done. The doctor signed the fax, presumably indicating that he read it; but he did not modify his discharge order, he left no instruction for the nursing staff, and — in accordance with his normal practice — he did not come to the facility to see his patient.
The next day, Martinez complained of a “[m]oderate, severe pain” that was progressing from the site of her pacemaker to her left shoulder. This time without notifying the attending physician, staff administered two doses of narcotic pain medication and discharged Martinez from the facility pursuant to the doctor’s May 3 order, said the court decision.
Once home, Martinez’s condition rapidly deteriorated. She was hospitalized with a wound infection that had become septic. She received aggressive treatment, but her symptoms worsened: she developed stress ulcers, hypoxemia, liver damage, and kidney failure. Martinez died at the hospital — 31 days after her admission to VNR.
The district court awarded damages of $2.5 million plus 8 percent interest amounting to $334,246.
The appeals court in an opinion filed September 15, 2016, said: “We affirm with respect to [VNR], which is liable for the negligent acts or omissions of its employees.” The court set aside the judgment against the corporate parent defendants and remanded the case back to the district court for a reassessment of the interest award.
The case was reported in a story in the Albuquerque Journal on May 7, 2017.
The Appeals Court discussion is available here and in the Court Documents section.
Survey Sponsors Say Baby Boomers Are Anxious About Massachusetts Nursing Homes
A new survey of 250 Massachusetts Baby Boomers shows overwhelming anxiety about nursing homes with 90 percent of those surveyed fearing a move into a nursing home, according to a news release issued April 25, 2017 by the survey sponsor, Massachusetts Advocates for Nursing Home Reform (MANHR).
Ninety-two percent of respondents do not support the nursing home industry’s attempts to reduce protections for nursing home residents, MANHR said. Eighty eight percent felt nursing homes in Massachusetts did not have enough staff to provide quality care.
“Such strong negative results show that the vast majority of Massachusetts nursing homes are not living up to their promise of quality care,” said Arlene Germain, president, MANHR. The nursing home industry continues to work hard to remove regulations – we call them protections — that ensure the care, safety, and dignity of nursing home residents.”
Ninety-six percent of Massachusetts ‘Baby Boomers’ favor comprehensive reform to improve the lives of nursing home residents with 88 percent agreeing the Massachusetts Legislature does not make the quality of care of nursing home residents a high enough priority. Ninety-seven percent believe it is important for nursing homes where abuse occurs to be shut down.
“Nursing home residents are ‘the forgotten ones’ as most people don’t pay attention to this truly needy segment of our population,” said Martin Alintuck, senior advisor at MANHR. “When our elderly need help the most, we fail them by not reforming a system that many of them must choose because they get old and run out of money.”
Other Survey Results:
73 percent do not believe nursing homes make the best interests of their residents a priority.
86 percent do not believe there is enough media coverage of nursing home problems in Massachusetts.
66 percent do not believe it is right the Commonwealth does not have enough resources to investigate and police the thousands of annual complaints about nursing homes.
The MANHR/SurveyMonkey research was conducted between March 31, 2017 and April 11, 2017. The 250 respondents, 44 percent male and 56 female female, live in Massachusetts and are between the ages of 52-72.
MANHR said it is the only consumer group in Massachusetts advocating for nursing home residents.
I am awaiting a response to the news release from the Massachusetts Senior Care Association, the state affiliate of the American Health Care Association (AHCA). The AHCA is a non-profit federation of affiliate state health organizations, together representing more than 13,500 non-profit and for-profit nursing facility, assisted living, developmentally-disabled, and subacute care providers that care for approximately 1 million elderly and disabled individuals each day.
by William J. Beerman, Sr.
Prior to this, I had made some cursory efforts to prepare for my mother’s decline. I had purchased and browsed a book on eldercare, and I had called A Place for Mom to inquire about assisted living facilities. But after that phone call about my mother’s broken hip, I quickly realized that I was unprepared and utterly incompetent to deal with the nursing home crisis that was unfolding.
I spoke with the author, Phyllis Ayman of Greenwich, CT, for 2 hours recently by phone and we compared notes. While my book, Mary Regina’s nursing home, approaches the subject from the point of view of a patient’s son who happened to be a retired journalist, and describes the inadequacy of the government oversight system, Phyllis has the perspective of a healthcare-provider insider who, as a staunch patient advocate for improved quality care, frequently found herself at odds with nursing home managers and administrators.
