Category Archives: Tort Reform

Every year, hundreds of news reports surface about nursing home staff physically or sexually assaulting patients. Physical and cognitive vulnerabilities may make it difficult for residents to report abuse or to have their reports taken seriously.  Web-enabled digital cameras offer a fantastic solution.  as a nursing home abuse and neglect lawyer, I wish we had video in every case.

Evidence suggests that even more people are putting cameras in a relative’s room to detect and deter abuse.  Seven states have passed laws expressly allowing families to monitor the care of aging relatives this way. Many states like South Carolina have no laws prohibiting the use of cameras.

While state laws regulating camera use require consent from the patient or a family member. Many residents are unlikely to be consulted about camera installation, because they lack, or are perceived to lack, capacity for consent. In these cases, children often act as parents’ legal proxy to give consent on their behalf.

Since nursing home rooms are usually shared, the consent and privacy of roommates presents an ethical problem, too. Inevitably, roommates’ conversations will be recorded, and they will be filmed when passing through a camera’s field of vision. All of the states that allow in-room cameras require that roommates or their legal representative be informed of surveillance and allowed to require that the camera be pointed away from their bed.

Webcams are a consumer response to the United States’ inadequate long-term care system. Long-term care in the United States is poorly funded, primarily by Medicaid. Medicare covers acute but not ongoing services and supports.

As a result, the nursing home staff trusted to do this demanding and fraught work receive low pay and no benefits. Turnover is particularly high among caregivers who provide the most hands-on, intimate care in American nursing homes.  With better pay and working conditions, nursing homes could attract more direct-care staff who would stay in their jobs longer and be more invested in their workplace. Nursing assistants could get to know residents, and keep a better eye on them. Enhanced training on recognizing and reporting abuse would also promote accountability.

 

McKnight’s reported that the Medicare system is spending “significantly” more money on post-acute care for patients when compared to those who have commercial insurance, despite it not being clinically more beneficial, a new study has found. The study was published in the September issue of Health Affairs and funded by the National Institute on Aging.

Researchers discovered that despite the difference in spending there were no significant differences in hospital readmission rates between the groups.

“When we looked at just the length of stay of SNFs (skilled nursing facilities) while comparing patients, (we found) longer average length of stay for Medicare patients,” Scott Regenbogen, an associate professor of surgery at the University of Michigan, told McKnight’s. “There may be clinically unwarranted longer lengths of stay among Medicare beneficiaries.”

Researchers used data from more than 25,000 patients throughout the state for the study. They then used a regression discontinuity design to compare post-acute care use and costs between seniors in their 60s who have traditional Medicare coverage or private insurance. They also focused on post-acute care received at skilled nursing facilities, at home and at inpatient and outpatient rehabilitation facilities.

Based on the findings, Regenbogen suggested post-acute care providers may want to be “really judicious with the volume of services they provide and conclusive of which of the post-acute care services are translating to better post-hospital outcomes.”

 

The operator of South Star Ambulance Service alleges that Pruitthealth—Augusta Hills facility repeatedly tapped the ambulance company for inappropriate, non-emergency services over a two-year period, and is asking for more than $150,000 back for those trips. SSAS first filed suit against Pruitthealth—Augusta Hills on April 8 for repeatedly ignoring warnings to more judiciously use its services.

Regional Services, which operates the ambulance company, alleges that since the SNF is a Medicare-eligible provider, it should apply for reimbursement for non-emergency ambulance transport. The alleged inappropriate trips were made between August 2016 and September 2018, according to the lawsuit.

Parent company Pruitthealth is based in Norcross, GA, and operates about 180 facilities in Georgia, Florida, and North and South Carolina.

In 1959, the Department of Housing and Urban Development (HUD) created a program that provides loans to start up new nursing homes and assisted living facilities across the US.  This program was meant to keep care for the elderly viable and affordable in rural or lower-income communities which would otherwise be unable to sustain such a facility. Since the program began, however, it’s become an easy way for some business owners to get loans backed on for-profit nursing homes that are practically doomed at the start.

Back in late 2013, Zvi Feiner and a group of investors bought the Rosewood Care Centers, a chain of 13 nursing homes and assisted living facilities in Illinois. The Department of Housing and Urban Development insured the loans for the centers’ creation, so they were automatically implicated when the Rosewood Care Centers went on a downward spiral. Feiner started losing money on the facilities soon after he bought them, with a team of investors, and began diverting Rosewood’s government-backed funds to other businesses. The HUD program eventually had to come to Rosewood’s rescue when their operation ran out of money and the agency had to take it over.

This HUD program is increasingly known for its lack of oversight and its loss of money on these nursing homes and assisted living facilities. Yes, owners like Feiner are at fault for moving those funds and allowing negligence in those facilities, but HUD backed those for-profit facilities and paid little attention to their nefarious activities before it was too late. Not only is the program poorly run and bad for the government financially, it’s also bad for the residents. Some studies are finding these facilities which take government backing, especially the for-profit ones, are more likely to receive bad quality ratings and ultimately endanger their residents.

The families of many Rosewood patients have filed lawsuits due to the facilities’ negligence. Other facilities backed by the HUD program face similar widespread issues. If the program continues the way it is, it might only further the danger surrounding the businesses it backs.

Medicaid is the program that covers medical care for the poor. It provides free care in many cases. But nothing is free.  The money has to be paid back when you die.  This is what’s known as Medicaid estate lien and recovery.  The law allows the state to collect what Medicaid spent on long term care during their entire lifetime after they die.

Unlike many government benefit programs, it’s not a grant or a gift. It’s a loan and the loan is paid back after death.  This surprises many families who will lose their home.

Attorney Tim Takacs explained that’s how estate recovery works.

“The government basically says we’ll let you keep your house during your life, but after you’re gone, you don’t need it anymore,” Takacs stated.

There are certain circumstances when family can remain in the house, like when there’s a surviving spouse, a child under 21 or a disabled child. And, adult children are allowed to stay in the house if they lived with the parent and helped care for them for at least two years before the parent moved into the nursing home.

So how do you protect your house from estate recovery? Experts say the best way is through estate planning and it really needs to be done well before you or your loved one has to go into a nursing home, usually at least five years. And, when you are making plans, make sure you talk with an attorney who specializes in elder care law.

A federal jury convicted Philip Esformes, the infamous owner of assisted living facilities and skilled nursing facilities in Florida, of a billion dollar healthcare fraud.  Esformes is guilty of making $1.3 billion in fraudulent claims to Medicare and Medicaid for services that were not provided, weren’t medically necessary or were received through kickbacks. Evidence showed he bribed physicians to admit patients into his facilities and paid off a Florida state regulator for notification of planned inspections.

Esformes was convicted of 20 counts — one of conspiracy to defraud the United States, two of receipt of kickbacks in connection with a federal health care program, four of payment of kickbacks in connection with a federal healthcare program, one of conspiracy to commit money laundering, nine of money laundering, two of conspiracy to commit federal program bribery and one of obstruction of justice.

“Even beyond the vital dollars lost … Esformes exploited and victimized patients by providing inadequate medical care and poor conditions in his nursing homes,” Shimon Richmond, special agent in charge of the U.S. Department of Health and Human Services Office of Inspector General’s Miami Regional Office, said in a statement. “We will continue the fight against such parasites.”

He personally benefited from the fraud and received in excess of $37 million. Esformes’ conspiracy involved a network of 16 assisted living facilities and skilled nursing facilities that he owned in Miami-Dade County.

Prosecutors said for 18 years–from January 1998 through July 2016– he cycled patients through his facilities in poor condition, where they received inadequate or unnecessary treatment, then improperly billed Medicare and Medicaid.

Extravagant purchases included luxury automobiles and a $360,000 watch, the Justice Department said. Prosecutors said he bribed the basketball coach at the University of Pennsylvania in exchange for his assistance in gaining admission for his son into the university. That coach, Jerome Allen, testified Esformes paid him about $300,000 in cash bribes and wire transfers.

A 12-person jury deliberated for four days before agreeing that the 50-year-old entrepreneur was guilty on 20 out of 26 charges. Those include paying and receiving kickbacks, money laundering and conspiracy to commit federal program bribery. Jurors did not, however, reach a verdict on the main count — that Esformes conspired to defraud Medicare.  Prosecutors blasted Esformes following the conclusion of the eight-week trial for the $1.3 billion scheme to defraud both Medicare and Medicaid, calling him a “despicable,” “vampire” who was fueled by “unbounded greed.”

Meanwhile, the government alleged, Esformes provided access to assisted living residents “for any healthcare provider willing to pay a kickback” — including pharmacies, home health agencies, physician groups, therapy companies, partial hospitalization programs, laboratories and diagnostic companies — even though many of the services for which they were paid were not medically necessary or were never provided.

Esformes plans to appeal according to defense attorney Roy Black, said the Associated Press, which also reported that Black suggested that prosecutors may have overstated the amount of money involved in the case.  Esformes, 50, originally faced 26 charges. He was convicted of:

  • nine counts of money laundering,
  • one count of conspiracy to commit money laundering,
  • four counts of payment of kickbacks in connection with a federal healthcare program,
  • two counts of receipt of kickbacks in connection with a federal healthcare program,
  • two counts of conspiracy to commit federal program bribery,
  • one count of conspiracy to defraud the United States and
  • one count of obstruction of justice.

At the Esformes trial, some witnesses testified that conditions in the facilities were poor and care inadequate but that the businessman was able to conceal this information from authorities by bribing Bertha Blanco, a 30-year employee of the Agency for Health Care Administration, which oversees the licensure of assisted living and skilled nursing facilities in Florida, to provide advance notice of surprise inspections.

 

 

 

Herminigilda Manuel, the infamous owner of three California assisted living facilities pleaded guilty in federal court last month to willfully failing to account for and pay $512,000 in federal employment taxes.  Manuel, according to the Justice Department, admitted to not paying federal income, Social Security and Medicare taxes that were owed by the assisted living facilities and also to concealing the fraud by keeping two sets of payroll accounting records, from 2010 to 2013.

“One set of records consisted of wages paid to employees and taxes withheld from those wages that were reported to the IRS,” the department said. “The second set of accounting records consisted of additional wages paid to employees that were not reported to the IRS.”

Manuel was charged Feb. 8 with 12 counts of willful failure to account for and pay over employment taxes. The maximum statutory penalty for each count is five years in prison and a $250,000 fine, although additional periods of supervised release, fines and restitution also may be imposed.

Under a plea agreement, Manuel pleaded guilty to one count. If she complies with the plea agreement, the remaining counts will be dismissed at sentencing. A sentencing hearing is scheduled for June 11.

Another big win for nursing home residents and transparency. The North Dakota House passed a Senate bill that sets up rules allowing people to place cameras in nursing home rooms.  Nursing home patients, or people acting on their behalf, may soon be allowed to look in on loved ones.  This will make it easier to detect waste, fraud, and abuse.  Backers of the bill say this will help families monitor their loved one’s care from afar.

“My mom lived in a long-term care facility for 10 years. I saw a couple advantages to this. Since the rest of my family lives out in California, it would’ve been easy for them to monitor my mother,” said Rep. Dick Anderson, R-Willow City.

The Senate must approve the bill one more time before it can go to the governor’s desk.

McKnight’s had a great article on the recent decline in nursing home beds according to a recent analysis by Marcum LLP’s statistical analysis of nursing home trends between 2013 and 2017. The 72-page book is aimed at providing a practical tool for operators to establish baselines and compare themselves against the competition.

Overall occupancy percentages declined from 83.07% at the beginning of the study down to 80.24% in 2017. Almost all U.S. regions experienced decreases in patient days, driven partially by patients turning to other care options, such as home health and assisted living, the report found.

“We always know that there are sales and consolidations in the industry, but I think the shrinking reimbursement and lower occupancy levels have really caused the non-chain or the smaller nursing home groups to pause and say, ‘what am I doing here? I can’t compete in the marketplace anymore,’” Matthew Bavolack, national healthcare services leader for the firm,  told McKnight’s. “You’re seeing a lot of single-entity operators either close or sell off their operations.”

The good news: Given the current population trends, the lull in nursing home census numbers will only be temporary. Still, “the nursing home of tomorrow will not operate, look or feel anything like the nursing homes of today,” the report notes. For instance, boomers will not want to share rooms and will expect hotel-like amenities.

The industry is not going anyplace. As a matter of fact, there is going to be such a need for skilled care with an increasing number of Alzheimer’s and dementia patients and the aging population that nursing homes will have a very strong place and a strong foothold in the continuum of care. I think that’s a really important factor to take away from this,” Bavolack told McKnight’s.

Shrinking reimbursements, coupled with rising labor costs, have led to dwindling operating margins for operators, the report notes. Those pressures have subsequently diminished providers’ cash on hand and “hindered the industry’s ability to remain nimble and respond to changes in an environment that is experiencing substantial shifts.” Across the country, the days cash on hand decreased from about 18 in 2013 to 17 in 2017, a decrease of about 6%.

The report also offers nursing home operators three tips to begin preparing for what’s next, including (1) have a strong marketing team and aggressive marketing plan to attract Medicare and private-pay residents (2) offering specialty programs, such as Alzheimer’s care, to stand out from the competition and (3) modernize their environments to provide the “new style of living” expected by today’s residents and their family members.

Yesterday, while the U.S. House of Representatives was debating the Paycheck Fairness Act, a bill to help end wage discrimination, Rep. Virginia Fox (R-VA) and House Republican leadership forced a vote on an amendment that would have capped attorney fees under the Fair Labor Standards Act.

After a short debate, during which Rep. Susan Wild (D-PA) fiercely defended trial lawyers, the House resoundingly voted down the amendment 236-191.  We encourage you to watch and share this video of Rep. Wild defending trial lawyers.