The legal website called Leagle reported the case of ARNOLD WALTER NURSING HOME v. PUMAREJO.  The nursing home sued the family of a resident when Medicaid did not pay for some services.  However, the Court found that the family is not financially responsible for the payment.

In February 2008, Heriberto Pumarejo became a patient at the nursing home. On February 19, 2008, Heriberto, as the resident, and his daughter-in-law Kathryn, as the resident representative, entered into a written agreement with the nursing home.  Heriberto agreed to pay, out of his own assets, for his nursing home care until he became eligible for payment by Medicaid.  Plaintiff was aware at that time that Heriberto had transferred ownership of his house, his only significant asset, to Herbert in 2006.  On May 6, 2008, Heriberto’s application for Medicaid was denied, based upon the 2006 transfer of his house to Herbert. In addition, because of the transfer, Heriberto would not become eligible for Medicaid coverage until September 21, 2011.

 

In June 2008, plaintiff billed Kathryn and Herbert directly for the care rendered to Heriberto to date. The amount of the bill was in excess of $23,000. They did not pay plaintiff, but they did remove Heriberto from the nursing home. They provided home care for him until his death on September 14, 2008. Heriberto’s estate is insolvent.

It is well established law that courts enforce the contract that the parties themselves have made and, further, that they do not make a better contract for either party. See McMahon v. City of Newark, 195 N.J. 526, 545-46 (2008). There can be no doubt that the written agreement between plaintiff and Kathryn contains no requirement that any assets other than Heriberto’s be used to satisfy his financial obligations if his Medicaid application were to be denied. It provided, in relevant part, as follows:

The Resident Representative agrees he/she shall be responsible only for making the necessary arrangements to have paid (either from Resident’s assets and/or from Medicaid, Medicate [sic] or assigned supplementary payments of insurance companies) the charges and other billings pursuant to the terms set forth below.

There is no specific provision in the agreement requiring any family member to return property that Heriberto had previously conveyed or gifted to them. We do not understand plaintiff to contend that the terms of its alleged oral agreement with Herbert went beyond those of its written contract with Kathryn.

 

 

The Star Tribune had an article about another disturbing incident of abuse at a nursing home.  An aide at a nursing home crammed a sock in the mouth of a screaming resident because the woman wouldn’t be quiet.  The investigative report quotes a co-worker as saying, "What the hell are you doing?" as the incident  took place in the resident’s room at  the Sunnyside Care Center.

The co-worker told an investigator that the nursing assistant "chuckled" and responded
that the resident "wouldn’t quit hollering," the report added. The co-worker then removed
the sock from the resident’s mouth. The nursing assistant was hired in October 2009 at the care center.  He denied putting the sock in the resident’s mouth and said some of his colleagues were trying to force him out.   A claim by the resident that the assistant also slapped her that evening could not be substantiated. 

 

The San Francisco Chronicle ran a disturbing article about Concepcion "Connie" Pinco Giron.  She was an administrator at a Berkeley nursing home charged with kidnapping Carnell Williams, an 85-year-old woman with Alzheimer’s disease. 

Giron told a supervisor that Williams was being transferred to another care home. There were no such plans, however – instead, Williams moved into Giron’s home and Giron started cashing Williams’ pension and Social Security checks.  The victim was held for a year in the home of the administrator.  She stole more than $50,000 if you  five other elderly patients.  Giron opened bank accounts at Citibank for five other patients in 2008 and began transferring money from those accounts into her own bank account.

Giron wrote checks to herself from the patients’ accounts, used their ATM cards, and stole cash from patients’ trust accounts that the Berkeley nursing home maintained.

 

The Philadelphia Inquirer wrote an article on the recent verdict that included punitive damages.  A jury awarded $5 million in punitive damages against Jeanes Hospital and a Wyncote nursing home in the death of a man caused by preventable fatal bedsores.  The damages – $1.5 million against Jeanes and $3.5 million against the Hillcrest Convalescent Home – came two weeks after the same Common Pleas Court jury awarded $1 million in compensatory damages in the case. The damages were awarded to the widow of Joe N. Blango.

Steven R. Maher, who represented Blango’s widow, said that in his 25 years of handling such cases, this was only the second time a jury had awarded punitive damages. One reason, he said, was the high standards required to permit punitive damages to be considered. A jury must find that a facility had engaged in "outrageous and reckless conduct," he said.

Blango went to Jeanes on May 21, 2006, after suffering weakness and confusion. He was 74 at the time and was thought to have suffered a stroke.  Doctors at Jeanes failed to properly diagnose that Blango was suffering from a urinary-tract infection that worsened andcaused the bedsores that ultimately killed him. The staff allowed the bedsores to fester and Blango to go malnourished to the point that he lost 28 pounds.

"This verdict sends a message," Maher said, "that this type of care is unacceptable and will not be tolerated."

 

The Concord Monitor had an article about the U.S. Drug Enforcement Administration’s recent enforcement against the practice of nurses taking doctors’ orders orally to order patients’ narcotics and anti-psychotics by phone. Pharmacies are required to have written authorization from a doctor before filling prescriptions for narcotics such as Percocet, OxyContin and Vicodin.

The move is aimed at protecting nursing home residents by preventing nursing home staff from diverting or dispensing the powerful painkillers without doctor authorization.  Of course, the nursing home industry does not want to pay doctors so they are whining about the DEA’s enforcement.

Few nursing homes have pharmacies on site or doctors on staff.   However, federal regulations and professional standards mandate licensed staff to treat residents’ pain immediately.

 See NY Times article on this issue here.

The DEA changed the standard to make it easier for nursing homes to give narcotics to residents by allowing nurses to dispense controlled painkillers to nursing home patients if the patient’s doctor electronically transmits a prescription to a pharmacist.   See article from Wisconsin Rapid Tribune.

USA Today had an interesting and controversial article on two new studies that show the bones of some post-menopausal women who take bisphosphonates (Actonel, Boniva, Fosamax, Reclast) to ward off osteoporosis can stop rejuvenating and become brittle after prolonged use.   Bisphosphonates are among the top-selling drugs in the USA,with annual sales exceeding $3.5 billion.

Osteoporosis is a health risk for the aging population. An estimated 10 million Americans have the disease and almost 34 million have low bone mass, putting them at risk for spine and hip fractures.   Studying bone biopsies in women who suffered femur fractures, lead researcher Dr. Joseph Lane found the quality of the bone diminished after long-term bisphosphonate use.

 

 

Dr. Rosenwasser’s research notes that bone densitometry (DXA) scans show a buckling potential in the femur area of the hip in patients being treated for osteoporosis with bisphosphonates. His studies note the decline after four years of use or more. "It can be thought of as a brittleness," Rosenwasser says. "Think of it as not a lack of quantity of bone mineral but of quality of organization."

 

KSAX.com had an article written for the web by Megan Matthews on the tragic and preventable death of a nursing home resident at Fair Oaks Lodge after an employee accidentally gave her the wrong medication, according to a Minnesota Department of Health investigation.  An employee accidentally gave the Alzheimer patient another patient’s medicine on June 1, 2009. The mistake caused a drop in blood pressure, and the woman was taken to the hospital where she died six days later in intensive care.

CEO Joel Beiswenger did not accept responsibility but said  "It was just one of those things that happened. Nobody intended to do anything, and it was the human making the tragic error," Beiswenger said.

But the same medicine mistake has happened before; twice to two other patients, which means the nursing home made three significant medication errors from May 27 to June 12, 2009.

The other two patients survived, but the state held Fair Oaks Lodge responsible for neglect, and the nursing home had to improve their procedures and be audited.

 

 

 

The Dallas Morning News had an article about a new study that proves that feeding tubes in nursing-home patients with advanced dementia are used in for profit facilities more often than government-owned hospitals.  The feeding tube is used whether it helps the patients live longer or not, the researchers from Brown and Harvard universities say.

Researchers analyzed more than a quarter-million admissions at thousands of acute-care hospitals from 2000 to 2007. Feeding tubes were used far less frequently at smaller, rural hospitals not affiliated with medical schools. Decisions are based more on hospital practices than on patients’ or families’ wishes, says lead study author Dr. Joan M. Teno, from Brown University’s medical school.

The results were published Feb. 10 in the Journal of the American Medical Association.
 

Feeding tubes generally save nursing homes time and money.  It is another way that the industry places profits over the best interest of their residents.

The L.A. Times had an article about options when a loved one gets injured at a nursing home or hospital.  The California Department of Aging received 43,000 nursing home complaints in 2009. Some alleged patient abuse or neglect; others reported missing items. And some commented on the quality of the food.

"There is growing public awareness, people are feeling more empowered, and they have tools at their disposal to make a complaint," said Ralph Montano, spokesman for the California Department of Public Health, which regulates hospitals and long-term care facilities in the state.

Here’s how to complain.

In-houseMost patient advocates recommend first talking with providers within the nursing homes.  If that doesn’t work, you can talk with other people higher in the chain of command, up to the administrator.

Insurers  Another option is to file with your insurance company. The California Department of Managed Health Care requires that insurers in the state have a written process for patient complaints about hospitals and nursing homes.

Joint commission  The Joint Commission on Accreditation of Healthcare Organizations is a not-for-profit agency that accredits and certifies more than 17,000 healthcare organizations and institutions such as hospitals, nursing homes, behavioral health facilities and clinical laboratories nationwide. The commission’s Office of Quality Monitoring evaluates complaints filed against accredited organizations relating to care and safety issues.

Complaints can be faxed, phoned, e-mailed or mailed to the Joint Commission. When filing a complaint, briefly summarize the issues and provide the name and address of the facility. The agency takes one of four actions, depending on the complaint’s severity. The healthcare facility may be asked to provide a written response to the allegation. The complaint may be reviewed and considered during a coming survey. It may be placed in a database used to track performance. And if there is a serious threat to patient safety, a staff member will conduct a surprise visit to the organization.

Ombudsman   The California State Long Term Care Ombudsman Program can help resolve problems at nursing homes. It’s the arm of the state’s Department of Aging that investigates complaints made against long-term care facilities. There are 35 offices in the state, staffed with ombudsman representatives who advocate for residents of the 1,200 nursing homes and almost 8,000 residential homes in California.

When a complaint is received, an ombudsman from a nearby office goes to the facility to investigate within two to three days, said Joe Rodrigues, the state long-term care ombudsman. If the facility takes action, the case is considered resolved.  If there is no resolution or if the problem is about neglect or abuse, the ombudsman will bring it to the attention of the California Department of Public Health, which regulates nursing homes and hospitals.

State regulators   If you are filing a complaint with your local ombudsman, file one with the Department of Public Health for good measure, recommends Pat McGinnis, executive director of California Advocates for Nursing Home Reform.

The department’s staff responds within 24 hours to severe complaints and within 10 business days for minor complaints. When a facility is found to be at fault, the department can issue fines, deficiencies or revoke Medicare and Medi-Cal funding.

"If this is something that happens a lot, it is something that may be going on with everyone," she said. "We want people to look at systemic problems, because it is not just your mom, but it is probably happening to others who don’t have advocates as well."

 

The Washington Post had an article regarding the practice of "upcoding" in nursing homes, putting residents in ultra-high billing categories intended to be used for only 5% of residents needing highly specialized care and rehabilitation. To increase reimbursements and therefore profits, the nursing home represents that the residents need more care than they actually do. 

Since the system was instituted over 10 years ago, the numbers of residents in the ultra-high categories has quadrupled and amount of waste and abuse could reach billions of dollars a year. This billing program is specifically targeted in the new health care legislation changing 2 rules that experts said have been exploited by nursing homes to inflate bills.

North American Health Care (NAHC) is one of the worst placing 64% of its residents in the highest category; the national average is 9%.  HCR ManorCare is another chain that abuses the system.

Homes that provide the highest level of care are known as skilled nursing facilities and have become a big business. There are about 15,000 nationwide, and they rely heavily on Medicare to turn a profit. Last year, Medicare spent more than $25 billion on them.

 

"Upcoding, billing for services not rendered, and billing for worthless services have been significant problems for years, costing taxpayers many millions, if not billions, of dollars," said Marie-Therese Connolly, who headed the Justice Department’s Elder Justice and Nursing Home Initiative from 1999 to 2007.