Omaha.com had an article on the Des Moines lawyer who was suspended for 90 days for misusing confidential court documents to try to force the resignation of two nursing home executives and extort a $100,000 charitable donation from one of them.  Dean Stowers violated ethics rules by emailing threats in 2008 to a vice president and a board member of Care Initiatives, an organization that operates dozens of nursing homes.

Stowers, a defense lawyer, got the confidential documents after a lawsuit filed by his then-wife, Jan Reis. She alleged that she was fired in 2005 as chief operating officer of Care Initiatives after she was sexually harassed by the company’s president and attempted to blow the whistle on legal problems in its executive compensation.  Care Initiatives agreed to pay Reis $4 million to settle the case in 2007.

After learning that Iowa Sen. Chuck Grassley was investigating executive compensation at Care Initiatives, Stowers sent an email to the firm’s chief financial officer titled, "Your resignation." Stowers wrote that the executive had violated the law "based upon information known and that disclosed publicly" and should resign within 24 hours. "It looks as though your time has arrived," he wrote.  The next day, Stowers sent an email to a lawyer who is a Care Initiatives board member titled, "Your Time is Up." Stowers demanded that he resign immediately. Stowers told the official that he was "not competent" for his post and needed to focus on avoiding being disbarred and indicted on fraud charges while preserving "what may be left of your assets and already low reputation."

Stowers violated four professional rules by failing to obey a confidentiality order, committing extortion, communicating directly with parties who are represented by attorneys and engaging in conduct that is "prejudicial to the administration of justice," the court found.

Did anyone figure out or discover the "legal problems in its executive compensation."
 

 

Measures for Public Reporting and Quality Improvement to be Used in Nursing Home Compare

To improve the quality of care in nursing homes for the 1.4 million Americans who currently reside in facilities across the country, the National Quality Forum (NQF) has endorsed 21 measures to be used to care for both long-term residents and short-stay patients. The NQF-endorsed measures will be used in the Centers for Medicare & Medicaid Services’ Nursing Home Compare, an online database for consumers to compare the care provided in more than 17,000 nursing homes across the country.

In 2004, NQF endorsed an initial set of measures for publicly reporting care in nursing homes. With the completion of the current project, the 17 measures that were previously endorsed will be retired and, in some instances, replaced by the newly endorsed measures. These measures were recently retired in the transition to CMS’ updated data collection instrument, the Minimum Data Set 3.0 (MDS 3.0).

“Choosing where to go for long- or short-term care in a nursing home is an incredibly important decision,” said Janet Corrigan, NQF president and CEO. “Patients and their families need reliable information on the quality of care being provided in skilled nursing facilities so they can make informed decisions about the place they will receive care on a daily basis. The quality data derived from these measures will provide important information about infection rates, patient care experiences, and the general health of residents in nursing homes across the country.”

The 21 NQF-endorsed nursing home measures assess patient outcomes and the patient’s own experience of care for both long-term residents and short-stay patients. The measures address falls, infections, pressure ulcers, and the general health of residents and patients. Examples of endorsed measures include:

• percentage of patients who received influenza and pneumococcal vaccinations;
• percentage of residents with urinary tract infections;
• percentage of residents who need increased help with activities of daily living; and
• patient experience of care surveys for both long-term residents and short-stay patients.

NQF’s Steering Committee on Nursing Homes was co-chaired by David Gifford, MD, MPH, Director, Rhode Island Department of Health, and Christine Mueller, PhD, RN, FAAN, Associate Professor and Chair, University of Minnesota School of Nursing.

“These measures will help consumers better understand and compare quality of care when selecting nursing homes and will help them to monitor care once they or a family member is in a nursing home,” said Dr. Gifford. “Nursing homes can also use these measures to benchmark how they are doing compared to others in addressing important nursing home quality of care issues.”

NQF is a voluntary consensus standards-setting organization. Any party may request reconsideration of the 21 endorsed recommendations, in whole or in part, by notifying NQF in writing no later than April 1, 2011. (To access the appeals form, go to the Nursing Homes project page, then go to the section on appeals and click on the link to the standards directory.) For an appeal to be considered, the notification must include information clearly demonstrating the appellant has interests that are directly and materially affected by the NQF-endorsed recommendations and that the NQF decision has had (or will have) an adverse effect on those interests.

Endorsed Measures

• Physical therapy or nursing rehabilitation/restorative care for long-stay patients with new balance problem (RAND)
• Percent of residents experiencing one or more falls with major injury (long stay) (CMS)
• The percentage of residents on a scheduled pain medication regimen on admission who report a decrease in pain intensity or frequency (short stay) (CMS)
• Percent of residents who self-report moderate to severe pain (short stay) (CMS)
• Percent of residents who self-report moderate to severe pain (long stay) (CMS)
• Percent of residents with pressure ulcers that are new or worsened (short stay) (CMS)
• Percent of high-risk residents with pressure ulcers (long stay) (CMS)
• Percent of residents assessed and appropriately given the seasonal influenza vaccine during the flu season (short stay) (CMS)
• Percent of residents assessed and appropriately given the seasonal influenza vaccine (long stay) (CMS)
• Percent of residents assessed and appropriately given the pneumococcal vaccine (short stay) (CMS)
• Percent of residents assessed and appropriately given the pneumococcal vaccine (long stay) (CMS)
• Percent of residents with a urinary tract infection (long stay) (CMS)
• Percent of low-risk residents who lose control of their bowels or bladder (long stay) (CMS)
• Percent of residents who have/had a catheter inserted and left in their bladder (long stay) (CMS)
• Percent of residents who were physically restrained (long stay) (CMS)
• Percent of residents whose need for help with activities of daily living has increased (long stay) (CMS)
• Percent of residents who lose too much weight (long stay) (CMS)
• Percent of residents who have depressive symptoms (long stay) (CMS)
• Consumer Assessment of Health Providers and Systems (CAHPS®) Nursing Home Survey: Discharged Resident Instrument (ARHQ)
• Consumer Assessment of Health Providers and Systems (CAHPS®) Nursing Home Survey: Long-Stay Resident Instrument (ARHQ)
• Consumer Assessment of Health Providers and Systems (CAHPS®) Nursing Home Survey: Family Member Instrument (ARHQ)

The National Quality Forum (NQF) operates under a three-part mission to improve the quality of American healthcare by:
• building consensus on national priorities and goals for performance improvement and working in partnership to achieve them;
• endorsing national consensus standards for measuring and publicly reporting on performance; and
• promoting the attainment of national goals through education and outreach programs.

NPR has developed an interactive database that has information about the independence level of residents at nearly 16,000 nursing homes around the country. For each facility it shows the percentage of residents who can do various daily living tasks by themselves, such as dressing, bathing, eating, walking, and using the toilet. It may be useful information when talking about the number of residents the CNAs need to assist to do things like dress, bathe, eat, etc., when presenting claims for understaffing.

 

Above the Law had an article about a corporate insurance defense lawyer getting caught coaching his client during a deposition.   It all started in July, when Florida law firm Rasco Klock sent a paralegal to Wilmington for a deposition. The firm is representing a plaintiff suing an insurance company, but one of their lead attorneys, Juan Carlos Antorcha, had to remain in Miami and conduct the deposition by video, with the paralegal handling the exhibits in person.  During the deposition of a witness for the defense, a strange noise caught the attention of the Perceptive Paralegal. After hearing clicking, he peeked beneath the table and saw a defense attorney’s foot tapping the foot of the deponent. He snapped a photo with his smartphone and sent it to Antorcha, who confronted the defense and halted the deposition. Rasco Klock then filed a very angry motion for sanctions, accusing the defense attorney of coaching the witness through foot tapping.

The lawyer accused of foot-tapping is Brown Sims shareholder Kenneth Engerrand. On every single page of the 13-page motion for sanctions against him is the incriminating footsie photo. 
Here’s one of the photos.  This guy is a disgrace and should be sanctioned.

You can find the Motion here and here and Defendant’s Reply here.

 

McKnight’s Long Term Care News had an article about the new definition of malnutrition by an international panel of nutrition experts to assist healthcare workers identify and treat malnutrition.

Adult malnutrition can now be classified in one of three categories: starvation-related, chronic disease-related or acute disease/injury-related.   A 2000 study from the Commonwealth Fund found that, depending on the subgroup, between 35% and 85% of nursing home residents can be considered malnourished.   One of the major causes includes failure to train CNAs on proper feeding techniques, failure to staff properly so enough time is given to the residents to finish eating, and the quantity and quality of the food.

The experts who contributed to the new guidelines include members of both ESPEN (the European Society for Clinical Nutrition and Metabolism) and the American Society for Parenteral and Enteral Nutrition (ASPEN). The new definitions are being dually published in the journals Clinical Nutrition and JPEN, the official journals of ESPEN and ASPEN, respectively.

 

A resident’s chart is required to be complete, accurate, and legible.  The chart is a legal-medical document that is used to communicate among shifts, to document the resident’s condition and to prove the care actually provided.  Often times the charts are false, fraudulent, or simply misleading.  In The Pittsburgh Channel’s article, the facility falsely documented and forged a family member’s signature for reimbursement.

Team 4 investigative reporter Paul Van Osdol reported that 77-year-old Gene Cable checked into Scottdale Manor last November. Just six days later, he was dead.   Cable’s daughter, Rita Wilson, wanted to find out what happened, so she requested his medical records. When she got them, she was shocked. After Cable died, one of the first documents to catch the eye of his daughter was a Medicaid reimbursement form with what appears to be her signature.

"This was a document you were supposed to sign?" Van Osdol asked.

"Yes," Wilson said.

"You never did?" Van Osdol asked.

"No. I swear to God. I didn’t sign that," Wilson said.

Wilson said she also saw a nurse’s notes showing that her father supposedly went to the bathroom "when he was dead. And he was continent. That means he physically got up and went to the bathroom when he was dead."

Wilson complained to the administrator of Scottdale Manor Rehabilitation Center. She says administrator Brian Bazylak told her they took disciplinary action against the employee who allegedly forged her name and the employee who entered the inaccurate nursing notes.  Did they report them to the Board of Nursing?  Did they even fire them?  Did they audit all the other charts?

Attorney Peter Giglione, who has sued numerous nursing homes, says he is not surprised by what happened to Wilson. "We’ve had a couple cases tried here in Allegheny County where we’ve had staff members charting on our client after they’re dead," Giglione said.

Mark S. Armstrong wrote an interesting article about using the federal False Claims Act (FCA) in nursing home cases primarily involving Medicare and Medicaid claims.  Armstrong is a member of Epstein Becker Green Wickliff & Hall in its Health Care and Life Sciences practice group. He focuses primarily on regulatory, reimbursement and litigation matters.

Recently, the U.S. Attorney for the Eastern District of Pennsylvania employed the FCA to settle with a nursing home for submitting claims for payment for inadequate care involving the treatment and prevention of pressure ulcers, incontinence care, infection control, diabetic care, weight monitoring, nutritional provision and physician care. The theory in this case was that the nursing home submitted a false claim each time a bill to the government was presented for inadequate care. While this was not the first instance in which the FCA was used to target substandard care, it may signal a renewed prosecutorial interest as the government seeks to heighten its efforts to prevent fraud, waste and abuse, and increase quality of care.

The FCA makes it unlawful for a person to “knowingly” make a “false or fraudulent” claim to the government for payment of government funds. Although the FCA imposes liability only when the claimant acts knowingly, it does not require that the person submitting the claim have actual knowledge that the claim is false. A person who acts in reckless disregard or in deliberate ignorance of the truth or falsity of the information can also be found liable under the FCA.

The government has routinely pursued FCA cases when nursing homes submit fraudulent claims, including, but not limited to, 1) bills for services that were not provided, 2) bills for services that were medically unnecessary, 3) bills for services or items that were included in the facility’s per diem rate, and 4) claims to Medicare Part A when the resident is not eligible for the Part A benefit. In addition to these more typical enforcement actions, the FCA is being expanded to include billing for services where the care was substandard.

To participate in Medicare or Medicaid, providers must certify that they are abiding by all applicable statutes, rules and regulations regarding the provision of quality of care and safety. In FCA substandard care cases, the government alleges that by merely requesting payment, the provider implicitly certifies compliance with governing federal rules, regulations and contractual provisions that are a precondition to receiving payment. The government asserts this FCA implied certification theory when a nursing home submits a claim for Medicare or Medicaid reimbursement but is not fully compliant with quality of care regulations, including the Nursing Home Reform Act (“NHRA”).

The NHRA establishes quality of life and quality of care requirements that facilities must meet in order to participate in the Medicare and Medicaid programs. For example, under the NHRA, a “skilled nursing facility must provide services to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident,” including but not limited to nursing services, specialized rehabilitative services, pharmaceutical services and dietary services.

By submitting bills to Medicare or Medicaid, nursing homes implicitly certify to the government that they are in full compliance with applicable statutes, rules and regulations regarding the appropriate quality of care and safety. In its case against Willowcrest Nursing Home and Willow Terrace at Germantown (collectively, “Willowcrest”), the government pursued an implied certification theory claiming that by providing inadequate or worthless services, Willowcrest submitted false claims for reimbursement to the federal healthcare programs.

Facing a potential civil penalty in the maximum amount of $10,000 per claim, plus three times the amount of damages, Willowcrest settled its claim with the U.S. Attorney for the Eastern District of Pennsylvania. Willowcrest’s settlement requires that it 1) make a cash payment to the United States in the amount of $305,072, 2) hire a full-time physician assistant or nurse practitioner, and 3) retain a qualified monitor for three years who will assess the effectiveness, reliability and thoroughness of its internal control systems, training programs, and its response to quality of care issues.

It is likely that federal prosecutors will continue to use the theory of implied certification to combat substandard care when the government is paying for the provision of healthcare services. Accordingly, to minimize the risk of defending itself against the government’s FCA claims for substandard care, a nursing home should develop and implement a comprehensive compliance program that serves to reduce fraud and abuse, enhance operational functions, improve the quality of healthcare services, and decrease the cost of health care. At a minimum, a comprehensive compliance program should contain written policies and procedures that are adopted to prevent fraud and abuse and ensure an appropriate level of care for the residents.

Even if a nursing home has current compliance policies and procedures, it should conduct a baseline assessment of risk areas, particularly in the area of quality of care. According to the OIG, common risk areas for a nursing home involving quality of care include:

* Inappropriate or insufficient treatment and services to address residents’ clinical condition;

* Inadequate staffing levels or insufficiently trained or supervised staff to provide medical, nursing and related services;

* Failure to accommodate individual needs and preferences;

* Failure to properly prescribe, administer and monitor prescription drug usage;

* Failure to provide appropriate therapy services; and

* Failure to provide appropriate services to assist residents with activities of daily living (e.g. feeding, dressing)

The goal for a nursing home in conducting the risk assessment for quality of care is to ensure that the employees, managers and directors are aware of the risks and that it takes steps to minimize the types of problems identified. Written policies and procedures are an effective tool for improving quality of care for nursing home residents. But it is equally important to implement such policies through effective training and supervision.

By taking steps proactively to address quality of care deficiencies, a nursing home may not have to later defend itself from the government’s FCA claim of substandard care.

 

Philadelphia Daily News had an article about the Veteran Administration trying to conceal system wide neglect at a VA nursing home.  In a directive, VA officials informed local agency officials that inspection reports are no longer to be released to the public including family members of residents.  The directive came after the Tribune-Review disclosed details of a 2008 report on the nursing home that concluded the VA "failed to provide a safe and sanitary environment for their residents."   Such reports from the Long Term Care Institute – which the VA hired to inspect its facilities – are considered "protected" documents under the provisions of a federal law designed to promote improved quality, the directive states.  The Wisconsin-based institute, according to VA officials, conducted similar inspections of more than 100 VA facilities nationwide. Under last week’s order, none of those reports will be made public.

The report cited by the Tribune-Review was released by VA officials in Philadelphia under a public records request.   It described how one veteran had to have his leg amputated after a serious infection had gone untreated for so long that it attracted maggots. It also described blood-stained floors, a fly infestation and life-threatening treatment of veterans dependent on tube feeding.

 

 

Nursing homes continue to object and try to prevent residents from getting copies of medicaid and medicare cost reports despite the fact that this are public documents and federal regulations require the disclosure of the documents.  When the nursing home objects, inform the Court about the specific regulation requiring disclosure:

42 U.S.C. §1395i-3(g)(5)(A) which states,

Each State, and the Secretary, shall make available to the public–

(i) information respecting all surveys and certifications made respecting skilled nursing facilities, including statements of deficiencies, within 14 calendar days after such information is made available to those facilities, and approved plans of correction,

(ii) copies of cost reports of such facilities filed under this subchapter or subchapter XIX of this chapter,

(iii) copies of statements of ownership under section 1320a-3 of this title . . .
 

One of the many ways nursing homes and other Defendants delay and obstruct discovery or make it difficult to prove what happened to a resident is for them to "lose" documents.  This happens in almost all of our cases.  Here is an Order from a respected South Carolina judge that allowed the Plainitff in that case to amend the Complaint to add a cause of action for spoliation of evidence. 

This cause of action has never been recognized or rejected in South Carolina because the South Carolina Supreme Court has never had the opportunity to decide.  It makes sens for the court to recognize spoliation of evidence as a separate cause of action.