Monthly Archives: October 2016

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An 81-year-old resident of Grosvenor Park Health Center nursing home shot and killed himself with his own legally registered handgun.  Law enforcement and health authorities are investigating the shooting at the nursing home, which is owned by Synergy Health Centers. That New Jersey company has been the subject of a series of actions by regulators, who have imposed fines totaling hundreds of thousands of dollars following deaths and substandard care at other facilities.

Investigators say staff at Grosvenor Park Health Center knew of a reference a resident made to suicide a couple of days before he used a gun to take his life, a report on the findings indicates.

In the report’s findings, investigators noted that a family member had talked to the man by phone on Aug. 23, at which time they discussed “whether he/she would discharge home or remain in the facility for long-term care.” At that time, the man adds “that euthanasia was a third option.”

The family member relayed the man’s comments to a nurse, who then spoke with the resident about the comment. The nurse felt the family member had misunderstood the resident, according to the report.

That night, a physician allegedly met with the resident, adding that he “was fine, jovial, not depressed and not suicidal.” The physician later said he didn’t think monitoring by staff members was warranted, later adding that it wasn’t appropriate to “brow beat” a resident who made a statement suggestive of suicide when they might have had a “bad day.” That night, the man was found dead.

“One of the big questions is,” Salem Police Captain Conrad Prosniewski said, “what’s a gun doing in a nursing home?”

A 19-page report from the state Department of Health and Human Services and the national Centers for Medicare and Medicaid Services, says Grosvenor Park failed to meet federal requirements on resident care.

A study published last year in the International Journal of Geriatric Psychiatry found only 113 nursing home suicides between 1949 and 2013 detailed in medical literature, mostly in the United States.

The researchers found most of those committing suicide were men 61 to 93 years old, and the vast majority hung themselves or jumped. Similarly, a study of New York nursing home deaths between 1990 and 2005 found 47 suicides, mostly due to “long falls,” and few by firearms.

 

 

 

 

The Rand Corporation studied the differences in care provided to residents with Medicare Advantage (MA) and traditional fee-for-service (FFS) Medicare.  The study was published in the Journal of the American Medical Directors Association, v. 17, no. 10, 1 Oct. 2016, p. 960.e9-960.e14.

“Overall, we found few differences in NH quality scores between MA and FFS Medicare enrollees. MA enrollment was associated with better scores for pressure ulcers and antipsychotic use but worse scores for pain control, incontinence, and urinary catheterization. Results may be limited by residual case-mix differences between MA and FFS patients or by the small number of short-stay measures reported.

The following is a release from the U.S. Attorney’s Office:
Daybreak Partners, LLC, a holding company for a number of subsidiaries that operate and manage skilled nursing facilities throughout Texas, has agreed to pay $5,300,000.00 to resolve allegations that they billed Medicare and Medicaid for materially substandard nursing services.  The skilled nursing facilities are operated as individual limited partnerships owned by Daybreak Venture, LLC and Daybreak Healthcare, Inc. (Daybreak).  Daybreak denies the allegations.  U.S. Attorney John Parker of the Northern District of Texas made the announcement today.
The settlement resolves allegations that between 2006 and 2010, some of the skilled nursing services provided at four nursing facilities Daybreak owned and managed (Deerings Nursing and Rehabilitation, L.P., Odessa, Texas; Mansfield Nursing and Rehabilitation, L.P., Mansfield, Texas; Marine Creek Nursing and Rehabilitation, L.P. Mineral Wells, Texas; and Mineral Wells Nursing and Rehabilitation, L.P., Mineral Wells, Texas) were materially substandard and/or worthless because Daybreak: (a) failed to follow appropriate fall protocols for several residents; (b) failed to follow appropriate pressure ulcer and infection control protocols for several residents; (c) failed to properly administer medications to several residents to avoid medication errors; (d) failed to follow doctors’ orders for several residents; (e) failed to provide appropriate mental health treatment to several residents; (f) failed to answer several residents’ call lights promptly; (g) failed to institute appropriate infection control measures for several residents; (h) failed to provide a habitable living environment, adequate equipment, and needed capital expenditures; and (i) failed to investigate and report serious incidents to appropriate authorities on several occasions.
“In addition to our responsibility to preserve federal tax dollars, we have a special obligation to protect the most vulnerable members of our community,” said U.S. Attorney Parker.  “This settlement reflects our commitment to ensuring that medical providers for our ailing friends and family are not paid for substandard services.”
As part of the settlement, Daybreak entered into a Corporate Integrity Agreement with the Office of Inspector General for Health & Human Services (OIG) that requires an independent monitor and allows the OIG to oversee the quality of care provided at all of Daybreak’s skilled nursing facilities over the next five years.  Daybreak cooperated throughout the course of the investigation.
This case was handled by Assistant U.S. Attorney Clay Mahaffey.

 

The National Real Estate Investor had an interesting article about declining occupancy levels at nursing homes.  Occupancy levels at nursing homes around the country have hit 82.2 percent, a five-year low for the skilled nursing profession, according the National Investment Center for Seniors Housing & Care (NIC). A notable drop in skilled mix, the industry term referring to the level of nursing and other patient care administered in nursing homes, was the main driver of the overall dip in nursing home occupancy, according to NIC’s report.

The five-year low suggested that fundamental changes in the seniors housing industry, including government-mandated payment processes, are happening, according to officials at the NIC.

The Centers for Disease Control found that in 2014 there were 15,600 nursing homes delivering long-term care in the United States. That was down from the 15,700 nursing homes that delivered care in 2012.

That finding aligned with the dip in residents in nursing homes, too. In 2014, there were an estimated 1,369,700 residents in nursing homes, down from 1,383,700 in nursing homes in 2012.

While noting the decline in nursing homes, the CDC also found an increase in occupants at residential care communities. In 2012, about 713,300 elder Americans were in residential care communities, and by 2014 the number had increased to 835,200. Also, the number of adult day care service centers remained steady from 2012 to 2014, at 4,800.

Forbes had an article on the recent settlement between the DOJ and Defendants Life Care Centers of America, one of the nation’s largest nursing home chains, and its billionaire owner Forrest Preston.   Life Care and Preston have agreed to pay $145 million to settle a government lawsuit alleging that the firm had knowingly overbilled federal healthcare programs. The settlement is the largest the Department of Justice has ever obtained from a nursing home company.

Evidence supports the allegation that Life Care systematically submitted false claims for rehabilitation therapy to Medicare and TRICARE, the military’s health insurance program, over a period of seven years. The company’s corporate policies encouraged providing unnecessary treatment and keeping patients longer than needed to pump up revenues. Preston unjustly profited from the scheme.

“Life Care has agreed to pay $45 million of the settlement amount up front and the rest over three years. It also entered into a five-year corporate integrity agreement with the Office of Inspector General of the Health and Human Services Department. The agreement will require annual independent review of whether the therapy services Life Care bills to Medicare are necessary and appropriate.”

 

MSN reported the lawsuit filed against Revera Nursing Homes after a woman says her father died from an infected bed sore that went unnoticed and festered into an oozing stage-four ulcer.  Lori DeKervor’s father, Arthur Ross Jones, was taken to hospital in May 2014 after being found unresponsive in his room.

Ross fell twice at the facility but was never examined by a doctor and was left to suffer with pressure sores that resulted from him being bed-bound. Two weeks after his first fall on May 12, he was found unresponsive. He died about a month later on June 8, 2014.

He died a painful 13th-century death, while being looked after by a giant business entity that is making a ton of money on the basis of its promise to deliver reliable, professional health care to our parents,” DeKervor said in a release. “He deserved better than this.”

“He would be screaming and moaning,” DeKervor said. “Sometimes he would say, ‘stop the suffering.’ And I just didn’t feel that pneumonia would cause that kind of agony.”

She also noticed a bad odor in her father’s room. She stripped him of his clothes and found the oozing wound on his backside. She asked the doctor what it was, and she was told it was a sacral ulcer.

“I had never been made aware that this wound existed,” she said. “And I was shocked.”

“This is something you would think would happen in some sort of developing country where there are no medical supplies, or in some sort of camp in a war-torn country,” DeKervor said. “This isn’t something that would happen here.”

 

 

 

The American Health Care Association is the paid lobbying group for the profitable nursing home industry that represents most nursing homes in the U.S.  The lobbying group has filed a lawsuit against the federal government over a new rule that protects the right of patients and their families to sue nursing homes in court.

The new rule prohibits the unfair use of mandatory pre-dispute binding arbitration clauses in nursing home admission contracts, which require patients and their families to settle any dispute over care outside the court system via arbitration.  The rule does not prohibit arbitration after a dispute arises.  Residents and their family members still maintain the right to agree to arbitration.

The frivolous lawsuit filed in Mississippi by the American Health Care Association calls the arbitration clause ban “arbitrary and capricious” and contests the authority of the Centers for Medicare & Medicaid Services to regulate how nursing homes handle disputes. Of course, CMS can regulate nursing homes–that is their whole purpose.  The prohibition is not arbitrary or capricious.

The lawsuit repeats false claims by the American Health Care Association that arbitration is “an equally fair — yet far simpler and less costly — means of seeking redress as compared to the complicated and slow-moving court system.”  However, consumer advocates, legal experts, and residents all know that arbitration awards are lower than jury verdicts; that the cost of arbitration is excessive compared to using the judicial system; that there is no appeal to an arbitration award; that arbitration limits discovery making it difficult for residents to prove their case; and that arbitration is confidential so the public is not aware of the abuse, neglect, and fraud occuring in nursing homes in their community.

In fact, a 2009 study commissioned by the American Health Care Association found the average awards after arbitration in nursing home cases were 35 percent lower than if the plaintiff had gone to court.

 

The following is a statement from American Association for Justice President Julie Braman Kane in response to the American Health Care Association filing a lawsuit today challenging the Centers for Medicare & Medicaid’s new regulation prohibiting nursing homes’ use of pre-dispute arbitration clauses:

Cases of nursing home residents being abused and mistreated are far too common and corporate nursing homes have prioritized profits over people for years. The nursing home industry has hidden behind forced arbitration clauses to cover up abuse and neglect, and now they’re upset that regulators are stepping in.

“Rather than work to better protect residents and their families, these corporate nursing homes filed a lawsuit in a last-ditch effort to hang on to forced arbitration. Ironically, the nursing home industry is using a lawsuit to try to deprive residents and their families of that same right. The industry is grasping at straws because CMS clearly and accurately stated its legal authority to regulate the use of forced arbitration by nursing homes.

Background:

Corporations bury forced arbitration clauses in the fine print of everything from nursing home admissions forms to employee handbooks and credit card terms of service. These abusive clauses force Americans’ claims into arbitration – a rigged, secretive system designed by corporations to deny justice and accountability. Fortunately CMS has finally put an end to nursing homes’ use of the corporate bullying tactic of forced arbitration clauses, thus restoring the rights of residents and their families to hold these corporations accountable.

The American Association for Justice works to preserve the constitutional right to trial by jury and to make sure people have a fair chance to receive justice through the legal system when they are injured by the negligence or misconduct of others—even when it means taking on the most powerful corporations. Visit http://www.justice.org.

The District Sentinel reported on the U.S. Department of Justice’s settlement with OmniCare, Inc. which is the nation’s largest nursing home pharmacy making billions a year.  OmniCare will pay $28 million for its role in a massive kickback scheme perpetrated by drug manufacturer Abbott Laboratories dating back six years.

“Omnicare solicited and received kickbacks from Abbott in exchange for recommending that physicians prescribe Depakote, an anti-epileptic drug manufactured by Abbott, to elderly nursing home residents,” The DOJ detailed in a press release.

Omnicare Inc. was caught accepting direct payments, lavish vacations, and sports tickets from Abbott often times disguised as “grants” or “educational funding.” The drug manufacturer also financed Omnicare’s management meetings on Amelia Island, Fla.  Abbott also gifted sporting event tickets to Omnicare executives.

Abbott Laboratories had already agreed to pay $1.5 billion in 2012 to settle civil and criminal charges stemming from its kickback operations with several pharmacies.  The allegations against Abbott Laboratories were first lodged by former employees at the company, Richard Spetter and Meredith McCoyd. Since the prior lawsuits were filed under whistleblower provisions of the False Claims Act, McCoyd will receive $3 million from the federal share of the settlement with Omnicare.

“It is disturbing that any health care corporation would pay kickbacks that corrupt the professional medical decision making process in order to pad their profits,” said Nicholas DiGiulio, the Special Agent in Charge of the Department of Health and Human Services Office of Inspector General (HHS OIG).

This is not the first time OmniCare was involved in a kickback scheme.  See prior blog here.

 

By law, every nursing homes using computerized medical records must have a system that can generate a log or audit trail showing not only every electronic entry, but every access of the electronic record.  The audit trail prevents the alteration of the records without leaving a telltale trail behind.

The Health Insurance Portability and Accountability Act (HIPAA) of 1996 required the establishment of national standards for
electronic health care transactions. Health care providers were to implement security measures to ensure that electronically
transmitted and electronically protected health information “is not improperly modified without detection until disposed of.”
HIPAA also mandated that health care facilities retain the required documentation (including audit trail data) “for six years from the date of its creation.”

More recently, the Health Information Technology for Economic and Clinical Health Act (HITECH Act) was designed to “build
trust in health information exchange. HITECH, in addition to protecting medical information and personal data, also provides for an increased transparency to patients, who now are supposed to be granted access to their own electronic records within 30 days of the request.

Additionally, patients should be permitted access through a portal, so they can see the records in the same format that the healthcare providers see when they are making or accessing the patients’ records.

Why is this important?  Here is an example why.

Diana L. Stephens, a nurse at Golden Hill Nursing Home, is facing charges for allegedly stealing oxycodone and codeine while employed.  She had worked at the home from September 2015 through January, according to an affidavit.

Stephens is accused of diverting the painkillers by signing out the drugs on the controlled substance log, but the amount showed discrepancies on the patients’ electronic medication administration record, according to the affidavit that the agent filed in court.  The discrepancies showed that the patients were getting a lot fewer of the dosages units than Stephens had signed out.