As C. Diff Month Draws to a close

A lonely grandmother gazes at the photo of loved ones.

I’m William Beerman, author of the book, “Mary Regina’s Nursing Home.” In recognition of C. Diff Awareness Month (November), I am sharing the following from my personal life experience.

The disease C. Diff (Clostridioides difficile) is the most common healthcare-associated disease. It generates a half million infections a year and elderly persons in nursing homes are especially at risk.

I manage a Facebook page called Nursing Home Monitor, so of course, I’ve known for months that relatives of nursing home patients were banned from visiting their loved ones because of the COVID-19 virus.

But I didn’t expect to see the heartbreak of the nursing home personal visitation ban dramatized right before my eyes.

As I was delivering election information to a nursing home in Las Cruces, NM on October 27, 2020, a patient on a gourney and her daughter were checking in at the front desk. When they were finished, an attendant wheeled the patient away, and I heard the daughter say quietly, “I am so sad I cannot go with my mother.” The check-in host answered, “Yes, it is very sad.”

A transfer from a hospital to a nursing home is stressful enough these days. But it can be worse with the serious complication of C. Diff, an antibiotic-resistant bacteria that causes uncontrollable diarrhea.

The admission of the patient October 27 reminded me of the day I admitted my own mother to a nursing home in Pittsburgh in 2011 after she had a short stay in a hospital for repair of a broken hip. The nursing home turned out to be a bad one. But we could not get my mother transferred out because she came down with C. Diff.

C. Diff is contagious and requires the patient to have an isolation room. Medicare paid only a few dollars more for an isolation room than it paid for a semiprivate room. So any nursing home that accepted my mother would lose a lot of money because it would have to devote a room for two to just one patient. Nursing homes that we called while trying to transfer my mother said they had no isolation rooms available.

C. Diff played a big part in the death of my mother, who had been living independently before she broke her hip. She was an excellent candidate for rehab. But she died 30 days after being admitted to the nursing home, with C. Diff and a half dozen other afflictions.

The nursing home told me my mother had probably gotten C. Diff because the hospital had given her a heavy dose of antibiotics just before releasing her. The theory was that the dose wiped out benign bacteria and cleared the way for the antibiotic-resistant C. Diff to run rampant through my mother’s bowels without competition.

You can read about a lot of ways to fight C. Diff at the Peggy Lillis Foundation website https://cdiff.org, or https://peggyfoundation.org/ , or at the C. Diff Foundation website: https://cdifffoundation.org/ They are trying to raise awareness of C. Diff, and the fact that antibiotic use is the most common risk factor for C. Diff. The Peggy Lillis Website cdiff.org has a petition you can sign.

But one way to fight C. Diff that appeals to me is for the hospital patients being discharged to nursing homes to discuss the issue of antibiotics and C. Diff with the hospital staff.

This year the government Centers for Medicare and Medicaid Services — CMS — issued a rule that requires hospitals to provide discharge planning consultation for patients being released to nursing homes and other settings. You can discuss use of antibiotics with the hospital staff and select a nursing home that is appropriate for you. You are less likely to end up in a poorly rated one by accident.

Check out the guidance about selecting an appropriate nursing home and making your antibiotic treatment preferences known through the new CMS discharge planning rule at CMS’ Discharge Planning Rule Supports Interoperability and Patient Preferences | CMS.

Nursing Home Ratings Go from Bad to Worse In New Mexico’s Second Largest City

By William J. Beerman, Sr.

Residents of Las Cruces, NM have a challenging job ahead of them if they need to choose a nursing home. Eighty-four percent of the city’s certified nursing home beds are in homes that are rated “Below Average” or “Much Below Average,” according to ratings current as of November 26, 2019 on the federal government’s web site, Medicare.gov.

Las Cruces, a city of 102,000, is the second largest city in New Mexico. (If you’re not from Las Cruces, you can learn how to find the ratings and other details about nursing homes in your area by clicking here.)

A recent rating drop from “Average” to “Below Average” for Good Samaritan Society, Las Cruces Village, means four of the six government-certified nursing homes in Las Cruces are now rated “Below Average” or “Much Below Average.” Further, a warning icon (a white palm-out hand in a red circle) has been added to the rating for Casa Del Sol Center to indicate that nursing home has been cited for abuse.

As of late-November, 434 of the city’s 514 government-certified nursing home beds are in homes rated “Below Average” or “Much Below Average,” so uninformed persons choosing a nursing home in Las Cruces have an 84 percent chance of finding themselves or a loved one in a below-average or much-below-average-rated nursing home.

Currently, an estimated 339 people per day are staying in Las Cruces nursing homes that are rated “Below Average” or “Much Below Average.”

In October, three of Las Cruces’ six nursing homes were rated “One Star,” or “Much Below Average,” by Medicare.gov, the federal website that rates nursing homes on a five-star scale. Two of the six were rated “Three Stars” (“Average”) and one was rated “Five Stars,” (“Much Above Average”). I posted details of the ratings prevailing in October in an October 22 article entitled Finding a Nursing Home When Half of the City’s Nursing Homes Are Rated Much Below Average. The article included comments by spokespersons for the New Mexico Department of Health, the management of four of the nursing homes, and one of the city’s two hospitals.

Generally, nursing home spokespersons said Medicare.gov ratings may reflect conditions that have already been corrected; the ratings do not include customer satisfaction data; and the overall ratings are composites of subcategory ratings on matters such as staffing and clinical outcomes that may be higher than the overall rating and particularly important to individual patients. They recommend consumers visit nursing homes as part of the decision-making process. They also recommend searching for customer satisfaction information on the internet rather than relying solely on Medicare.gov.

Regarding the red Abuse icon that appeared on Casa Del Sol’s rating subsequent to the October article, Lori Mayer, a spokesperson for three Las Cruces nursing homes, said, “The Centers for Medicare & Medicaid Services (CMS) recently began flagging skilled nursing centers cited for abuse, neglect, and exploitation. We support making relevant, transparent information available to make informed care decisions. However, we recommend prospective patients review all information provided by CMS because the flag remains on the site long after the relevant issue has been resolved.” Ms. Mayer is the spokesperson for Casa De Oro and Casa Del Sol, which each have one star (much below average), and for The Village at Northrise, Desert Willow 1, which has five stars (much above average).

Speaking for the State of New Mexico Aging and Long-Term Services Department (ALTSD), Sarah Jacobs, general counsel for ALTSD, provided the following statement after reviewing an advance copy of this article.

“Improving the quality of our long-term care facilities is a top priority for Secretary [Katrina] Hotrum-Lopez and the entire administration. The Department of Health (DOH) licenses long-term care facilities and oversees their compliance. ALTSD works closely with DOH, through joint protocol to better serve our nursing home residents.

“Additionally, ALTSD runs the Long-Term Care Ombudsman Program, which is a resident-centered advocacy program that assists residents by protecting their health, safety, welfare, and rights. The Ombudsman Program is also a way to push facilities to improve their quality of care.

“Residents of any long-term care facility in New Mexico also have federally guaranteed rights, including the right to present grievances, the right to be fully informed, and the right to dignity, respect, and freedom. If residents or their families have concerns, they should reach out to the Long-Term Care Ombudsman Program for assistance — the toll free number is 1-866-451-2901.”

The October 22 article discussed how a rule change by CMS will require that hospitals discharging patients to nursing homes provide help with discharge planning and selection of an appropriate nursing home or other care provider. The change becomes effective November 29. Nevertheless, choosing will be problematic because the two nursing homes in Las Cruces not rated below- or much-below-average have only 50 and 30 beds respectively.

In October, the three Las Cruces nursing homes rated “One-Star” on the Medicare.gov Five-Star Rating System contained 66 percent of the 514 Medicare- or Medicaid-certified nursing home beds in the city. The three nursing homes continuing into November with a “One-Star” rating are Invigorate Post Acute of Las Cruces, Casa De Oro Center, and Casa Del Sol Center. Good Samaritan Society — Las Cruces Village, previously rated “Three Stars,” “Average,” dropped to “Two Stars,” “Below Average,” in November. Welbrook Senior Living, Las Cruces, LLC rose from “Three Stars,” “Average,” to “Four Stars,” “Above Average,” and The Village at Northrise, Desert Willow 1, continues to be rated “Five Stars,” or “Much Above Average.”

Regarding the abuse icon for Casa Del Sol, abuse is defined on Medicare.gov as the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish. It includes verbal abuse, sexual abuse, physical abuse, and mental abuse.

More information about nursing homes – including how to look up information about nursing homes in your area –- can be found in the article from October mentioned above. Also, information about nursing homes is available at my website www.wbeerman.com or at my Facebook page, Nursing Home Monitor

Medicare.gov contains an explanation of its ratings and details about specific nursing homes, including the most recent inspection report.

Copies of this article were emailed in advance directly to selected entities listed in the following paragraph. The list only includes job titles, but the emails were sent to specific named individual office holders to enable them to be aware of the situation described in the articles.

Administrator, The Centers for Medicare and Medicaid Services; the two U.S. Senators for New Mexico; a U.S. Senator and a Congresswoman who sponsored the Quality Care for Nursing Home Residents Act of 2019; the U.S. Congresswoman for Las Cruces; the New Mexico Governor, and Secretaries of Health and Aging and Long-Term Services; the chairperson of the New Mexico House Committee on Health and Human Services; a New Mexico State Senator for Las Cruces; a New Mexico State Representative for Las Cruces; the Mayor, City Councilors, and City Councilors-elect for Las Cruces; the American Health Care Association; the New Mexico Health Care Association; the Las Cruces nursing homes mentioned in the articles; and the National Consumer Voice for Quality Long-Term Care.

William J. Beerman, Sr., is the author of the book, “Mary Regina’s Nursing Home,” which is intended to help consumers prepare for a possible nursing home stay for themselves or a loved one, and improve the outcomes of their nursing home experiences.

Sen. Wyden Issues Statement About Nursing Home Issues

I wanted to post the recent statement by Sen. Ron Wyden about nursing homes to help it get the widest circulation possible. It is self-explanatory.

The statement reads in part “…one of the challenges this country faces today is ensuring that seniors in nursing homes are safe and well cared-for. Our best nursing homes meet a high standard of care, but tragically, not all do.”

Click to see the statement.

Home Page for Mary Regina’s Nursing Home book.

Nursing Home Answers DOJ News Release About Whistleblower Kickback Allegations

By William J. Beerman, Sr

In response to a request for a reply, an Orlando, FL nursing home issued a statement pushing back against a Department of Justice news release.

On January 28, 2019, U.S. Attorney Maria Chapa Lopez announced that Conway Lakes skilled nursing facility, several entities associated with Conway Lakes, and an Orlando-area orthopedic surgeon, Dr. Kenneth Krumins, agreed to pay $1.5 million to resolve allegations that they engaged in a kickback scheme related to the referral of Medicare and TRICARE patients.

The settlements resolve allegations that Conway Lakes, through associates, conspired to pay Dr. Krumins under a sham “medical director” agreement to induce him to illegally refer Medicare and TRICARE patients to Conway Lakes for rehabilitation services that were billed to the federal government, the U.S. Attorney said. Dr. Krumins’ settlement agreement also resolves allegations that he engaged in a similar kickback scheme with a related home health agency, the U.S. Attorney said.

On February 1, Conway Lakes issued a statement saying, “First and foremost, Conway Lakes is a Five-Star, Governor’s Gold Seal recipient, whose quality of care surpasses both state and national averages. “

Conway Lakes pointed out that it had not admitted any wrongdoing, but “determined that it would be less disruptive to its business and its patients to negotiate a settlement with the government.”

The government alleged that financial arrangements violated the physician self-referral law, commonly known as the “Stark Law,” and the Anti-Kickback Statute, giving rise to liability under the False Claims Act. Under two separately executed settlement agreements, Dr. Krumins has agreed to pay $500,000, and Conway Lakes and associates have agreed collectively to pay $1 million to the federal government, the DOJ said.

“Disguising intricate kickback arrangements through directorships and other misrepresented positions corrupts physician decisionmaking and undermines the public’s trust in the healthcare system,” said Special Agent in Charge Shimon R. Richmond of the U.S. Department of Health and Human Services’ Office of Inspector General.

The allegations resolved by the settlement agreements were originally brought in a lawsuit filed by a former employee of Conway Lakes, under the qui tam, or whistleblower, provisions of the False Claims Act, the government said. The act permits private citizens with knowledge of fraud against the government to bring an action on behalf of the United States and to share in any recovery. The whistleblower will receive $267,000 of the proceeds from the settlements, the government said.

Conway Lakes said the whistleblower is a former employee who was dismissed for failing to show up to work, never reported any of his concerns, nor did he inform a supervisor of any of the claims. Conway Lakes said the whistleblower lodged accusations against multiple individuals “without any evidence.”

The claims settled by the agreement are allegations only, and there has been no determination of liability, the original DOJ news release pointed out.

Feds Order More Weekend Inspections Of Nursing Homes To Catch Understaffing

The article reproduced below, by Jordan Rau of Kaiser Health News, is an excellent one in which Rau adds some perspective for a directive issued by Centers for Medicare & Medicaid Services (CMS) about monitoring of weekend nursing home staffing.

Lack of a nurse on duty on weekends, night shifts, or otherwise, raises a sometimes overlooked question: In the absence of a nurse, who is administering medications?

In my book, Mary Regina’s Nursing Home, I discuss a situation in which I visited my mother’s nursing home at 5:30 one morning in 2011 in an attempt to find out why my mother was being heavily drugged, or “zonked.” It appeared that possibly a nurse assistant, who would not be allowed to administer medication in a nursing home setting in Pennsylvania, had been doing so, with serious adverse consequences for my mother. I suspect this situation occurred because a nurse or nurses called off for the night shift on a weekend, or possibly no nurse was scheduled at all to administer medications.

When I complained in writing about this situation to the nursing home’s director of nursing, she confirmed in a phone call to me that the staff person should not have administered the medications — morphine and klonopin — and should have consulted a supervisor. When the state health department conducted an abbreviated onsite investigation of my complaint, the director of nursing was not present that day, and the health department refused to follow-up by revisiting the nursing home or even calling the director of nursing. The DOH instead declared that no medication error had occurred.

During the year of their investigation of my complaint, 2012, the DOH took only two enforcement actions statewide against nursing homes, compared to a high of 171 in 2003, and an average of 63.5 for the period 2002-2015.

Feds Order More Weekend Inspections Of Nursing Homes To Catch Understaffing

By Jordan Rau November 30, 2018

The federal government announced plans Friday to crack down on nursing homes with abnormally low weekend staffing by requiring more surprise inspections be done on Saturdays and Sundays.

The federal Centers for Medicare & Medicaid Services said it will identify nursing homes for which payroll records indicate low weekend staffing or that they operate without a registered nurse. Medicare will instruct state inspectors to focus on those potential violations during visits.

“Since nurse staffing is directly related to the quality of care that residents experience, CMS is very concerned about the risk to resident health and safety that these situations may present,” the agency said in a notification to state inspection offices.

The directive comes after a Kaiser Health News analysis found there are 11 percent fewer nurses providing direct care on weekends on average, and 8 percent fewer aides.

Residents and their families frequently complain the residents have trouble getting basic help — such as assistance going to the bathroom — on weekends. One nursing home resident in upstate New York compared his facility to a weekend “ghost town” because of the paucity of workers.

Richard Mollot, executive director of the Long Term Care Community Coalition, an advocacy group in Manhattan, welcomed the new edict but said it was only necessary because state inspectors have not been properly enforcing the rules already on the books.

“The basic problem is the states don’t take this seriously,” Mollot said. “How many studies do we have to have, year after year, decade after decade, saying it all comes down to staffing, and there are very few citations for inadequate staffing and virtually all of them are identified as not causing any resident harm?”

CMS said it will identify potential violators by analyzing payroll records that nursing homes are now required to submit. Those records, which became public this year, showed lower staffing than what facilities had previously told inspectors during their visits, according to the KHN analysis.

“CMS takes very seriously our responsibility to protect the safety and quality of care for our beneficiaries,” CMS Administrator Seema Verma said in a statement.

The nursing home industry criticized the heightened scrutiny.

“Unfortunately, today’s action by CMS will enforce policies that makes it even more difficult to meet regulatory requirements and hire staff,” said Dr. David Gifford, senior vice president of quality and regulatory affairs at the American Health Care Association, an industry trade group, in a written statement. “Rather than taking proactive steps to address the national workforce shortage long-term care facilities are facing, CMS seems to be focusing on a punitive approach that will penalize providers and make it harder to hire staff to meet the shared goal of increasing staffing.”

Currently, a tenth of inspections must occur during “off hours,” which can be either a weekend, or during a weekday before 8 a.m. or after 6 p.m. But for facilities that Medicare identifies as having lower weekend staffing, half of those off-hour inspections—or 5 percent of the total — must be performed on Saturdays or Sundays.

Medicare requires nursing homes to have a registered nurse on site for at least eight hours every day, but according to the payroll records, a quarter of nursing homes reported no registered nurses available at least one day during a three-month period. Since July, Medicare’s Nursing Home Compare website for consumers has highlighted homes that lack sufficient registered nurses and lowered their star ratings. Nursing Home Compare has downgraded ratings for 1,402 of 15,600 facilities for gaps in registered nurse staffing, records show.

The new directive instructs inspectors to more thoroughly evaluate staffing at facilities Medicare flags. The edict does not mean a flurry of sudden inspections. Instead, Medicare wants heightened focus on those nursing homes when inspectors come for their standard reviews, which take place roughly once a year for most facilities.

But what may appear to be staffing scarcities in payroll records may instead be clerical problems in which nurse hours are not properly recorded, say some nursing home officials.

Katie Smith Sloan, president of LeadingAge, an association of nonprofit providers of aging services, said in a statement that some homes are still struggling to adapt to the new data collection rules.

“We’ve been voicing our concerns to CMS and will continue to do so,” she said.

KHN’s coverage of these topics is supported by John A. Hartford Foundation and The SCAN Foundation

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.

CMS to Reinvest Fines Collected from Nursing Homes

NOVEMBER 20, 2018–The Centers for Medicare & Medicaid Services (CMS) announced upcoming efforts to support better care and outcomes for nursing home residents under the Civil Money Penalty Reinvestment Program (CMPRP). This three-year initiative aims to improve residents’ quality of life by equipping nursing home staff, administrators and stakeholders with technical tools and assistance to enhance resident care, CMS said.

“CMS is committed to ensuring nursing home residents are safe and receive quality care,” said CMS Administrator Seema Verma. “We are pleased to offer nursing home staff practical tools and assistance to improve resident care and positively impact the lives of individuals in our nation’s nursing homes.”

As part of the CMPRP, CMS said it will develop a variety of work products for nursing home professionals, such as staff competency assessment tools, instructional guides, training webinars and technical assistance seminars. These supports aim to help staff reduce adverse events, improve dementia care and strengthen staffing quality, including by reducing staff turnover and enhancing performance, CMS said.

This initiative is one of several CMS has underway to strengthen safety and health outcomes for nursing home residents, the agency said. For example, the Nursing Home Compare website and facility Star Ratings are resources CMS provides to help consumers and their caregivers make informed healthcare decisions. These resources are updated and expanded frequently, recently with the addition of payroll-based data on nursing home staffing, which can serve as one indicator of the quality of care, CMS said. In addition to the CMPRP, CMS also operates the National Partnership to Improve Dementia Care in Nursing Homes, which helps reduce the rate of inappropriate prescribing of antipsychotic drugs in this population.

The CMPRP is funded by federal civil money penalties, which are fines nursing homes must pay CMS by law when they are noncompliant with certain regulations and there are serious concerns about the safety and quality of care they provide. Most penalties collected are returned to states to fund state-based projects that benefit nursing home residents, and CMS retains a portion of the funds for similar federal initiatives.

Under the new program, CMS will collaborate with industry experts to develop an ongoing series of toolkits and technical assistance intended to help nursing home staff and management improve care delivery and thereby residents’ quality of life.

On November 20, CMS released its first toolkit in the CMPRP series, the Nursing Home Staff Competency Assessment and its supporting materials. The competency assessment is designed to help nursing home frontline and management staff evaluate their skills. It includes several questions to gauge staff knowledge about behavioral, technical and resident-based capabilities. Additional toolkits will follow under the series heading “Building on a Culture of Quality: Your Guide to Resident-Centered Care.”

For additional information on the Civil Money Penalty Reinvestment Program, visit https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/LTC-CMP-Reinvestment.html.

Author to Discuss Nursing Home Book on Radio Show

William J. Beerman, Sr. has been invited to appear on the “All About Books” radio show on KTAL-LP, 101.5 FM in Las Cruces, NM from 12:30-1 p.m., Friday, November 9. He will talk about his book, “Mary Regina’s Nursing Home,” with host Lynn Moorer.

The book is a journalistic novel that wraps a human-interest story around factual information about nursing homes and the government oversight systems for nursing homes. The wide-ranging book includes coverage of New Mexico Attorney General Hector Balderas’s lawsuit against a New Mexico nursing home chain. Details about the book are presented on the website https://www.wBeerman.com

Fed-Up with Abuses, Career Speech Pathologist Writes Exposé about Nursing Home Care

by William J. Beerman, Sr.

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.

Resignation of State Health Commissioner, Other Sensational Events, Focus Attention on Senior Care in Minnesota

By William J. Beerman, Sr.

(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 December 12 news conference can be viewed at the Republican Caucus website.

Trustee Pleads Guilty in Scheme to Embezzle Money From Client Trust Accounts

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.

Although Disputing Allegations, Catholic Health to Pay $6 Million in DOJ Settlement

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

How many care givers does your nursing home really have?

(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.

Is Repackaging of Leftover Nursing Home Drugs a Victimless Crime?

By William J. Beerman, Sr.

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.

Guilty Plea in Nursing Home Bribery Case; Sentencing Set

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.

Yes, at least one nursing home oversight employee did take bribes

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

Nursing Home Complaint Statistics Still Going Up

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

Updates: Are Some Nursing Home Residents Still in Jeopardy?

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:

California – A Stunning “Status Report”

In a summer 2017 newsletter article, the California Advocates for Nursing Home Reform said:

“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.

The researchers who produced the report were Denise A. Tyler, Emily A. Gadbois, Renée R. Shield, Vincent Mor, and Ulrika Winblad, all affiliated with Brown University, and John P. McHugh, of Columbia University.

Attorneys General in PA, 16 Other States, Oppose Pre-Dispute Nursing Home Arbitration Clauses

8/8/2017

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.

CMS Announces 1 Percent Raise for Skilled Nursing Facilities

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.

Kindle Version Available

A Kindle version of Mary Regina’s nursing home became available July 21, 2017 along with the paperback on Amazon.com.

Nursing Home Oversight Has Blind Spots, Author Says

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."

"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
About the Book, Mary Regina’s Nursing Home

AHCA Members Meet with HHS Secretary

AHCAPressOffice@ahca.org
(202) 898-3165

FOR IMMEDIATE RELEASE

(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.

Genesis Healthcare Agrees to Pay $53.6 Million

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.).

Topic(s): False Claims Act Healthcare Fraud
Component(s): Civil Division USAO – California, Northern USAO – Georgia, Northern USAO – Nevada
Press Release Number: 17-666 Updated June 16, 2017

Appeals court upholds $2.5 million award

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.

Anxiety over nursing homes

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.