The Star Tribune had an article about the recent investigation and finding of neglect against Bethesda Heritage Center in the death of a resident who choked after eating raw cucumbers. 
The Minnesota Department of Health found the Willmar nursing home was deficient because staff members were unaware the resident, who had chronic obstructive pulmonary disease and swallowing difficulties, should not have been allowed to have raw vegetables of any kind. 
Investigators found the facility “did not have a convenient or accessible means of identifying a resident’s diet during the serving of the meals, for staff to reference.”

Bethesda also was cited for failing to immediately report the death to the center’s administrator and to the Minnesota Department of Health.  The resident, who was not identified, choked during the evening meal on May 29.  According to the Health Department’s report, she had respiratory distress and an ambulance was called. The resident died later that evening in the emergency room at Rice Memorial Hospital. The death certificate listed respiratory failure and choking as the cause of death.

Staff members told state investigators they thought the resident could be served raw cucumbers because they were soft and in a cream sauce, even though this wasn’t allowed under the resident’s dietary restrictions.  The nursing home has reviewed its policies and procedures and retrained staff on dietary requirements. It now requires a double check between nursing and dietary employees to ensure residents are being served the correct diet.

The Minnesota Department of Health cited Bethesda Heritage Center in Willmar for neglect because the center’s staff members "were not aware [the resident] could not have any raw vegetables in any form during the serving of meals," according to a state investigatory report.



Internal Medicine News had an interesting article about nursing homes that improve their quality of care can reap financial rewards from that investment, according to a review of a federally maintained database on quality measures.   Unfortunately, the investment strategy may not work well for low-performing facilities that also have limited means to make improvements, Jeongyoung Park, Ph. D., and his colleagues wrote in the November issue of the journal Health Services Research.

"If the financial benefits of public reporting are targeted toward high-performing providers that are also well financed, [the policy] may merely direct financial resources to the providers that need these resources for quality improvement the least," wrote Dr. Park, a health services researcher at the American Board of Internal Medicine, Philadelphia, and his coauthors. "As a result, low-performing providers may improve at a slower rate or remain stagnant due to a lack of resources. … In this way, public reporting may widen the disparities in quality between rich and poor providers."

The researchers compared four financial outcomes (net resident revenue, total operating expenses, operating profit margin, and total profit margin) during two periods: 3 years before public reporting was instituted (1999-2002) and 3 years after (2003-2005). They examined the record of 6,286 Medicare-certified, freestanding facilities across the United States. Hospital nursing facilities were not included. The final analysis comprised 42,542 facility-years of data.

The study focused on changes in 15 clinical quality measures included in the Nursing Home Compare (NHC) tool, including percentage of long-stay patients, pain levels, pressure sores, depression/anxiety, incontinence, permanent urinary catheterization, mobility changes, urinary tract infections, and weight changes.

Each measure was calculated by year and facility. The results were then compared with financial performance in the periods before and after public reporting began. Facilities were considered high scoring if all 15 quality measures were above the median each year. Facilities were low scoring if all 15 clinical measures were below the median.

In the before period, 812 facilities ranked high in quality, 4,672 ranked in the middle, and 802 ranked as low. In the post-reporting period, 1,507 ranked as improved, 4,337 ranked as no change, and 442 ranked as worse. Facilities that improved after public quality reporting began averaged $8,412,762 in net resident revenues (2005 dollars). Those that didn’t improve averaged $8,206,766, and those whose quality got worse average $7,388,145.

"Generally, the high-scoring nursing homes and those that improved had better financial performance in the post-NHC period, compared with facilities that did not perform as well," the authors noted. However, facilities with increased revenues also showed increases in operating expenses "consistent with the expectation that quality improvement requires some investment of resources."

This finding "raises an important policy concern that over time, public reporting potentially reduces a low-scoring facility’s ability to further respond to quality improvement incentives" because these facilities often are poorly financed to begin with.

The analysis also identified Medicare coverage for residents as important to quality and financial return. "Our analyses indicate that the most important link between performing well on NHC and reaping financial rewards is an increase in Medicare admission," the authors wrote. "This path has face validity in that Medicare margins are known to be higher than Medicaid margins, and facilities compete to attract both Medicare and private-pay patients; this was true long before NHC. 

The Star Tribune had a good article abiout the problem of over-medication of nursing home residents.  Powerful antipsychotic drugs have been used for years to reduce agitation, hallucinations and other debilitating symptoms among people with mental illnesses.  They also are widely used "off label" to quell disruptive behavior among people with Alzheimer’s disease and other forms of dementia. Many residents are drugged into a stupor — sleepy, lethargic, with little interest in food, activities and other people.

"You see that in just about any nursing home,” said Eva Lanigan, a nurse and resident care coordinator at Sunrise Home in Two Harbors, Minn. "But what kind of quality of life is that?"

Working with a psychiatrist and a pharmacist, Lanigan started a project last year to find other ways to ease the yelling, moaning, crying, spitting, biting and other disruptive behavior that sometimes accompany dementia.  They wanted to replace drugs with aromatherapy, massage, games, exercise, personal attention, better pain control and other techniques. The entire staff was trained and encouraged to interact with residents with dementia.

Within six months, they eliminated antipsychotic drugs and cut the use of antidepressants by half. The result, Lanigan said: "The chaos level is down, but the noise is up — the noise of people laughing, talking, much more engaged with life. It’s amazing."

Now the home’s operator, Shoreview-based Ecumen, has started a project called Awakenings throughout its 15 long-term care nursing homes. It’s based on Lanigan’s work and funded with a two-year, $3.7 million state grant.

Medicare spends more than $5 billion a year on those drugs for its beneficiaries, including about 30 percent of nursing home residents. Several studies have concluded that more than half are prescribed inappropriately. The drugs are especially hazardous to older people, raising the risk of strokes, pneumonia, confusion, falls, diabetes and hospitalization.

Instead of looking for causes of disruptive behavior among dementia patients, doctors typically prescribe drugs to mask the symptoms because it is easy. Some say nursing homes cannot afford to replace drugs with personal attention because it requires too much staff time.

"Our guess is that it will take the equivalent of two extra people at each home, spread across all job categories," said Finn, Ecuman’s vice president. "Can we afford it? We think we have to, because it’s the right thing."



The New York Times recently had an article about the recent guideline issued by the Drug Enforcement Administration which will give LPNs more authority to get residents narcotics.  Historically, pharmacists dispensed the prescription for patients after direct oral or written orders from a doctor.  The new guideline grants physicians the power to authorize nurses at long-term care facilities with the ability to call in oral prescriptions to pharmacies.  Prior to the guideline, the agency did not recognize nurses who were employed by nursing homes as legal agents acting in lieu of physicians to call in prescriptions to pharmacists.  The pharmacies were able to dispense these drugs to patients only via direct communication with a doctor. The new guideline permits physicians to authorize more than one nurse or health care worker to communicate the need for certain medications.

However the new guideline does not apply to all prescription drugs, with morphine being a perfect example of a prescription drug which nurses cannot call in for their residents.

Some argue that shortening the time it takes for residents to get the painkillers and anti-anxiety medication will be an improvement, and allow nurses to address their residents’ needs. Prescription pills still need to be monitored very closely, as the DEA recently had their first national prescription drug “Take-Back” campaign. This effort worked to collect prescription drugs so that they could be disposed of properly.


The system is rife with abuse and neglect including staff stealing narcotics and nursing home patients in distress aren’t getting pain-controlling medications in a timely manner, and delays run from hours to days. Delays in treatment occur because the nursing homes refuse to put a doctor on staff or have all-hours access to a physician able to write prescriptions whenever needed.

DEA spokesperson Gary L. Boggs told the Times that the DEA had the best interests of patients in mind when it tightened the relaxed access to powerful drugs. "What we see is nurses unilaterally calling in prescriptions, or pharmacists dispensing controlled substances without a prescription, then trying to get a doctor to sign a prescription for a patient he never saw."

The result too often was over-medicated nursing home residents, and residents taking addictive drugs that no doctor had prescribed. While the lax rules were convenient for nursing home personnel, abuse was rampant.  The the larger problem is that nursing homes aren’t providing quality, crucial medical care to their residents.

Senior policy lawyer at the Center for Medicare Advocacy Toby Edelman told the Times that nursing homes must provide medical care for residents. "If people are so sick that they desperately need pain medication, they should be seen by a doctor," Edelman said. "The absence of doctors in nursing homes has been a problem for decades."

Sen. Herb Kohl (D-WI) continues to express his reservations about Michelle Leonhart, the nominee to lead the U.S. Drug Enforcement Agency. In a Senate Judiciary Committee hearing for Leonhart, Kohl said he still has concerns about the DEA’s policy regarding the delivery of pain medications in nursing homes.

“I will not hold her nomination in the Committee today, but I do intend to hold her nomination on the Senate floor until we have made more progress towards our goal of ensuring that nursing home residents get timely access to the prescription drug care they need,” Kohl told the committee.

Kohl is working on legislation that would allow nurses—acting as agents to doctors—to call in controlled substances such as Schedule II drugs to pharmacies. The Senate committee also conducted an investigation that found much confusion still exists among nurses as to what new protocols allow.


The Florida Bar Journal had a great article discussing Medicare liens and attorneys responsibility protecting Medicare’s interest.  Some changes attributed to the MMSEA are completely inaccurate. For example, some insurers are insisting on putting Medicare on the settlement check, claiming the “new law” requires it.  Another example is the insistence by some insurers that Medicare set asides (MSA) are now required in all liability cases. Neither is true. The simple fact is that the MMSEA imposes a mandatory insurer reporting requirement upon responsible reporting entities (RRE).  The article explains the act and its requirements. It also focuses on what the act does not require in an attempt to clear up widespread misconceptions.

On December 29, 2007, President Bush signed into law the MMSEA.  Part of this act, §111, extends the government’s ability to enforce the Medicare Secondary Payer Act.  As of April 1, 2011, an RRE (liability insurer, self-insurer, no-fault insurer, and workers’ compensation carriers) shall determine whether a claimant is a Medicare beneficiary (“entitled”), and if so, shall provide certain information to the secretary of Health and Human Services when the claim is resolved.

Under MMSEA, the RREs/insurers described above must report the identity of the Medicare beneficiary to the secretary and other such information as the secretary deems appropriate to make a determination concerning coordination of benefits, including any applicable recovery of claim.  Failure of an applicable plan to comply with these new requirements will incur a civil money penalty of $1,000 for each day of noncompliance on each claim.  A single claimant can have more than one claim, but the penalty is per claim. These new reporting requirements will make it very easy for CMS to review settlements to determine whether Medicare’s interests were adequately addressed by the settling parties.

The stated intent of the new reporting requirements was to identify situations when Medicare should not be the primary payer and ultimately allow recovery of conditional payments. The Medicare Secondary Payer Act (MSP) prohibits Medicare from making payments if payment has been made or is reasonably expected to be made by a workers’ compensation plan, liability insurance, no-fault insurance, or a group health plan. However, Medicare may make a “conditional payment” if one of the aforementioned primary plans does not pay or cannot be expected to be paid promptly.  These “conditional payments” are made subject to being repaid when the primary payer pays. When conditional payments are made by Medicare, the government has a right of recovery against the settlement proceeds.

Most trial lawyers understand their obligations under the MSP with regard to making sure conditional payments are repaid. The problem is the growing misconception among insurers that Medicare should be on the settlement check to ensure compliance with the MSP. Some insurers have even been told that the law requires Medicare be on the check. This is simply not so.

Although “Medicare on the check” is a very problematic issue, a larger issue is the alleged connection between MSA and the MMSEA. CMS has made it very clear in numerous conference calls that the MMSEA is totally unrelated to MSA. In one such MMSEA conference call, Barbara Wright, acting director of the Medicare debt management division at CMS, stated that §111 of the MMSEA “does not mandate or specify anything about liability set asides.”  It can’t be made any clearer than that. There is no relationship between MMSEA and MSA in liability cases.

There are two issues that arise when dealing with the application of the MSP: 1) Medicare payments made prior to the date of settlement (conditional payments); and 2) future Medicare payments for covered services. Since Medicare is not supposed to pay for future medical expenses covered by a liability or workers’ compensation settlement, judgment, or award, CMS recommends that injury victims set aside a sufficient amount to cover future medical expenses that are Medicare covered.

The problem is that the MSA are not required by a federal statute even in workers’ compensation cases where they are commonplace. Instead, CMS has intricate “guidelines” and “FAQs” on its website for nearly every aspect of set asides, from submission to administration. There are no such guidelines for liability settlements involving Medicare beneficiaries. Without codification of set asides, there are no clear cut appellate procedures from arbitrary CMS decisions and no definitive rules one can count on as it relates to MSA. Although there is no legal requirement that an MSA be created, the failure to do so may result in Medicare refusing to pay for future medical expenses related to the injury until the entire settlement is exhausted. This creates a difficult situation for Medicare beneficiary-injury victims and contingent liability for legal practitioners, as well as other parties involved in litigation involving physical injuries to Medicare beneficiaries.

The question becomes what to do when faced with an insurer who insists on an MSA in a liability case. A trial lawyer could ask for the insurer’s legal basis for mandating an MSA or ask for a cite to the federal statutes, code of federal regulations, case law, or any rules/process regarding MSA for liability cases. There are currently none; no one will find any law that directly addresses the issue of MSA for liability cases. However, this article is not suggesting that parties should ignore Medicare’s interest under the Medicare Secondary Payer Act. To adequately protect counsel and a client who is a Medicare beneficiary — or reasonably expected62 to become a Medicare beneficiary within 30 months of settlement — an MSA evaluation may be in order. As described below, this is a voluntary process, and CMS may not review the proposed set aside.

A trial lawyer may want to take the position that the insurer should bear the costs of the MSA evaluation and the costs of the set aside (including professional administration of the account). In addition, there are many non-Medicare medical expenses that must be considered in arriving at a settlement for future medical costs (i.e., certain durable medical goods, custodial care, certain prescription medications, and the Part D donut hole, to name a few). If a set aside will be established, a thorough examination of non-Medicare expenses along with an allocation of future Medicare covered future services should be undertaken.

There are other options besides a formal set aside if a trial lawyer is faced with an insurer who requires addressing Medicare’s interest. One option is to estimate the future Medicare covered expenses the client will potentially incur and document that amount in the settlement agreement. The estimate can be created from doctors’ reports or life care plans. The client then sets aside this amount and is told to use it for future Medicare covered expenses. No submission to CMS is done if this option is exercised. However, the release provides evidence that Medicare’s interests were taken into account at settlement. Since CMS admits there is no formal review process for liability settlements, and submission is voluntary, an argument can be made that all the current law requires has been done and then some.

Another option is to do the formal allocation report and again document it as previously mentioned. Since CMS does not guarantee a review of a liability set aside, a formal allocation along with documenting it in the settlement agreement provides the necessary evidence that Medicare’s interests were adequately addressed. A formal allocation also gives the trial attorney a third, independent party to review the future medical expenses and determine what Medicare covers. This is an important piece of protection for the trial attorney as it provides an extra layer of error and omission protection.

Margaret Mock filed a lawsuit in Cook County Circuit Court against ManorCare at Elk Grove Village and St. Alexius Medical Center in Hoffman Estates and their associated parent companies. Mock was living at the nursing home undergoing short term rehabilitation from a hip surgery.

On Sept. 26, 2009, Mock was dropped while she was being transported by a nursing home employee from her bed to her wheelchair.  As a result of the fall, Mock broke her leg in two places.  Because of her weakened condition, Mock was unable to have surgery to repair her broken leg and had to remain in the nursing home for five months. Mock now cannot walk or participate in rehab while she lives at home and is cared for by her husband and nurses.

The lawsuit claims the nursing home was negligent and violated the Nursing Home Care Act by failing to use caution when moving Mock because she was already recovering from hip surgery and in danger of falling.

Alexius Medical Center also is named in the lawsuit because of a pressure sore Mock developed during her stay. The lawsuit claims the hospital should have prevented the sore.


Local ABC News channel out of Long Island had a report about the problem of bed bugs at Avalon Gardens nursing home in Smithtown. Workers say a bed bug problem is so bad, they keep moving patients room to room to escape the bugs.

"They’re horrible they’re all over the place and now to know you haven’t been told," said Cindy.  Cindy asked us to conceal her identity. Afraid speaking out will cost her her job as a nurse at  Avalon Gardens.  According to Cindy, the nursing home officials continue to shuffle residents from one room to another while new patients are being brought in.

She says managers at the facility notified a select group of staffers yesterday about the discovery of bedbugs. Some workers told Eyewitness News they were not informed.  The state Health Department confirmed they’re investigating a complaint.

McKnight’s had an interesting article about a recent study about early diagnosis of depression.  Researchers from the University of Missouri found that some elderly patients exhibit additional clinical changes as their depression develops. Early identification of these characteristics can lead to quicker treatment and improved results. Early indicators include increased verbal aggression, urinary incontinence, increased pain, weight loss, lowered cognitive ability or a decline in performing daily activities.  It’s essential that nursing home workers be able to identify early indicators of depression before mood-related symptoms arise, according to a new study published in The Journal of Gerontological Nursing.

 The researchers also found that patients with increased verbal aggression were 69% more likely to be diagnosed with depression. The MU scientists arrived at these conclusions after studying 14,000 nursing home residents over the age of 65, who were not diagnosed with depression when they entered the study. Depression affects 30% to 40% of all nursing home residents, according to the American Geriatrics Society. Left untreated, depression can lower a resident’s quality of life and even result in suicide.


CNN Tech had an article about how sensors can assist in monitoring elderly people with health problems.  Sensor networks, which made their debut in hospitals and assisted living centers, have been creeping into the homes of some older Americans in recent years.  The systems — which can monitor a host of things, from motion in particular rooms to whether a person has taken his or her medicine — collect information about a person’s daily habits and condition, and then relay that in real-time to doctors or family members.

The sensors know when Charlton Hall Jr. wakes up to go to the bathroom. They know how much time he spends in bed. They watch him do jigsaw puzzles in the den. They tattle when he opens the refrigerator. "It’s a wonderful system for helping older people to stay independent as long as possible," he said, sitting in the living room of his 7,500-square-foot house, a sensor watching him from an elaborate bookshelf. "They know where I am — all the time."

If Hall opens an exterior door at night, for example, an alert goes out to his doctor, a monitoring company and two of his closest friends, since he doesn’t have family nearby.

Hall’s monitoring network, made by a company called GrandCare Systems, features motion-sensors in every room as well as sensors on every exterior door. A sensor beneath the mattress pad on his bed tells health care professionals if he’s sleeping regularly.

All of this connects wirelessly with vital sign monitors, which send his doctor daily reports about his blood-sugar levels, blood pressure and weight. He can see charts about how he’s doing on a touch-screen monitor that sits on a desk in his home office.

University researchers are testing robots that help take care of older people, keep them company — and even give them sponge baths. Meanwhile, some younger people have taken to collecting information on their own, often going to extremes to document exercise routines, caffeine intake and the like and posting the data online.

The idea of monitoring older people is catching on slowly, and there are several reasons for this.

Part of the hold-up is a lack of research. While tech researchers and health care experts have a general sense that more monitoring must be a good thing for spotting health trends and preventing accidents, there’s little formal research to prove this.

Companies that make these systems are also scarce.  Some complain that the monitoring systems are too expensive for many people.

The AARP supports these monitoring systems as a way for people to "age in place," but the group says adult children should have serious conversations with their parents about why they’re interested in a monitoring system and the possible benefits.


The Nursing Home Complaint Center is saying, "Medicare, or Medicaid fraud in the United States is a $60 billion dollar a year enterprise. Not only does Medicare, or Medicaid fraud fleece the taxpayers; in the instance of nursing homes, it frequently leads to wrongful death, or elder abuse, and neglect."   The group says, "both federal, and state governments are advertising for individuals to step forward to about this gigantic problem. What they fail to say is that there could be significant rewards for nursing home, or health care employees, who have substantial proof, and specific facts."

The Nursing Home Complaint Center is expanding its efforts to let nursing home employees, or healthcare workers know there can be significant rewards for substantial proof related to Medicare, or Medicaid fraud. The group says, "we know there are thousands of potential US whistle blowers out there, who have substantial proof about Medicare, or Medicaid fraud. Typically, these health care professionals know the specifics about millions of dollars in over billing Medicare, or Medicaid, or down right fraud, and we want to hear from them." 

Three Common Medicare/Medicaid Fraud Issues-Whistle Blowers Wanted

1. The Nursing Home Complaint Center says, "most Nursing Homes or Rehab Centers fail to provide anything close to mandatory time/hours per day with patients under their care. Nursing homes, rehab centers, and hospitals are required by Medicare/Medicaid to spend minimum hours per day, per patient." The Complaint Center says, "less than 60% of Medicare/Medicaid patients are getting the mandatory hours per day in care, putting the patient at risk and exposing the tax payer to a bill that should not have been paid.

The Nursing Home Complaint says," senior citizens are dying in US nursing homes, because they are in many cases, not getting anything close to mandatory time/hours per day in care. The other issue with nursing homes is that they are in many cases staffed, with undocumented workers acting as health care providers-no taxes being paid on the workers."

The Nursing Home Complaint Center says, "many nursing homes also continue to over bill Medicare for unnecessary testing of patients, who do not need to be tested. Unnecessary testing include speech, cognitive or related areas. We think 50% of all Medicare tests involve fraud, or were not warranted."

2. The Nursing Home Complaint Center says,"doctors prescribing the most expensive drugs, rather than generics, or the most expensive medical devices also account for up to 15% of all Medicare/Medicaid over-billings.  According to Nursing Home Complaint Center, " the big drug companies/device makers categorize the physician as a consultant and he/she then gets paid, or they get to go to a vacation spot where they are treated to free first class hotel accommodations, etc." They say, "all the doctor has to do is give a talk, to a possibly empty room, for an hour. Rather than prescribe the least expensive drug, or medical devices, some physicians prescribe the most expensive out of loyalty to the drug company, or medical device maker- this costs taxpayers billions, and its fraud."

3. The Nursing Home Complaint Center says, "nursing homes, boutique hospitals, not for profits hospitals, or hospitals owned by doctors/investor groups are largely unregulated. These types of healthcare facilities, or hospitals are not typically on any federal, or state Medicare or Medicaid radar screen for fraud, or over billing." They say, "over billing the federal, or state government, on the part of US nursing homes, not for profit hospitals, and or county/state hospitals could be $20 billion dollars a year or more."