I just finished listening to a 6 episode podcast called Dr. Death.  From Wondery, the network behind the hit podcast Dirty John, DR. DEATH is a story about a charming surgeon, 33 patients and a spineless system. Reported and hosted by Laura Beil.

It tells the story of a Texas neurosurgeon Christopher Duntsch.  He botches so many spinal/neck surgeries that other surgeons lead the charge to the Medical Board to remove his license and even to have him criminally charged.  We’re at our most vulnerable when we go to our doctors. We trust the person at the other end of that scalpel. We trust the hospital. We trust the system.

Christopher Duntsch betrayed that trust.  He claimed he was the best in Dallas. If you had back pain, and had tried everything else, Dr. Duntsch could give you the spine surgery that would take your pain away.  But his patients experienced complications, and the system failed to protect them. Which begs the question: who – or what – is that system meant to protect?

The last episode goes into a lot of the ramifications of his actions, including the fact that none of these patients could find lawyers to represent them because of Texas tort reform which arbitrarily limits compensation for pain and suffering at $250K.  Attorneys wont take the cases because they can’t afford to.  The reporter goes on to explain what Texas thought they would get in return for the reform, but then showed how that didn’t happen.  It’s a good piece of journalism, and might be something good to recommend to those who think tort reform is any kind of answer.

The overhaul of Arkansas’ judicial system by nursing home lobbyists and insurance groups ran into a surprising obstacle.  A conservative Christian group has begun rallying churches and abortion opponents against the measure, saying that limiting damage awards in lawsuits sets an arbitrary value on human life, contrary to anti-abortion beliefs, and conflicts with biblical principles of justice and helping the poor.

The conservative Family Council Action Committee argues that putting a cap on other damages devalues the lives of those with no income, such as the elderly and stay-at-home parents, who would receive little compensation for pain and suffering. The religious argument also could offer tort reform opponents in other states a new weapon for fighting limits.  Proponents of the measure are stunned by the opposition.  Arkansas’ measure is an effort by an array of pro-business groups, including the state chamber of commerce, to reinstate unfair and arbitrary legal caps that have been chipped away over the years by court rulings.

The amendment would cap damages for noneconomic losses, such as pain and psychological distress, to $500,000 and punitive damages to $500,000 or three times the amount of compensatory damages awarded, whichever is higher. It also would cap attorney contingency fees at one third of the net amount recovered.  The proposal doesn’t cap economic damages, which go toward verifiable losses such as medical expenses as well as past and future wages.

The Family Council is organizing meetings with church leaders to call for the measure’s rejection.  Pastors were handed informational booklets emblazoned with the words “Don’t Put A Price Tag On Human Life.” Flyers left on each table offered attendees inserts for their church bulletins.

“The Bible is full of references to justice, and (the proposal) creates an environment where the powerful can tip the scales of justice against everybody else, but especially the poor,” Jerry Cox, the Family Council’s head, said at a recent breakfast meeting with pastors.

Rose Mimms, the head of Arkansas Right to Life, also spoke out against the measure, writing in a column on the conservative website townhall.com that it “erodes our own pro-life efforts” in the state.

Stephen Harrison, who pastors the nondenominational Family Church in Pine Bluff, said, “I don’t want to vote for something that will devalue human life or put a price tag on what a life is worth.”

 

A top elder rights legal group, Justice in Aging, has released a timeline of events in which the Centers for Medicare and Medicaid Services (CMS) have cut nursing homes a break by eliminating or easing restrictions that protect nursing home residents.

CMS is the federal agency tasked with the oversight and regulation of over 15,600 nursing homes in the United States. Their safety rules dictate how nursing homes operate and the group’s inspections and surveys may lead to fines and punishments that are intended to spur change and compliance. The number of incidents of neglect are still at an all-time high.  The rules, regulations, and laws need to be strengthened, with harsher punishments that send a message that improper treatment of the elderly is unacceptable.

CMS Easing Nursing Home Regulations
Below are some of the most notable rule changes and reversals by CMS from December 2016-June 2018, as detailed by Justice in Aging:

  • Removed ban on arbitration agreements in nursing home contracts after industry lobbyists pushed back.
    • Arbitration agreements force residents or their loved ones to settle grievances out of court, without legal representation, typically to the detriment of the injured party.
    • Arbitration agreements are now allowed to be used as a condition of admission to nursing homes.
  • Granted nursing homes an 18 month ‘grace period’ free of fines and penalties before new safety rules must to be followed.
    • New regulations went into effect in November 2017 but after complaints from nursing homes, CMS has given them 18 months to become compliant.
    • Some of these new regulations are:
      • Creation of a Baseline Care Plan for each resident within 48 hours of admission.
      • Facility Assessment requirement that forces a nursing home to consistently evaluate the needs of residents and what’s needed to meet those needs.
  • Reduced nursing home fines for past violations.
    • For past incidents, went from per-day fines to per-instance fines.
    • Even if an incident lasted for days, weeks, or months, a nursing home now only pays 1 fine.
  • Relaxed fines for Immediate Jeopardy citations.
    • Allowing CMS’ regional offices to determine whether to assess fines for Immediate Jeopardy violations that didn’t actually cause harm or death vs. past rule that required a fine for these violations.
    • Advised CMS regional offices to consider the severity of incident, the odds that it was a one-off mistake, and if the act of neglect or abuse was intentional.

The Greenville News recently published a story about a different kind of hero–Dr. Michael Mayes.  Since 2010, he’s worked mostly in secret to gather information, turn it over to the government and help build a federal case to expose national Medicare fraud that affected his own patients on Hilton Head — and those around South Carolina and the nation too.  If Mayes hadn’t risked his career, relationships with fellow physicians and future job prospects, the fraud could still be going on today.

His work exposed a national scam where physicians ordered panels of lab tests that were not medically necessary for their patients and received illegal kickbacks. As a result, Medicare, and other government healthcare programs, paid upward of $500 million in fraudulent claims.  Mayes’ whistleblower lawsuit, the first of three, was filed under seal in 2011 and later taken over by the federal government. His name was not revealed until 2015 when the first settlement in the case was announced.

He was the only physician to come forward.  The taxpayers of South Carolina owe him a debt for his courage and integrity.

The federal anti-kickback statute, which prohibits laboratories from “offering or paying any renumeration, in cash or kind, directly or indirectly, to induce or influence physicians” to order tests that “may be paid for by federal health care programs,” according to the federal complaint.

In June 2011, a lawsuit was filed alleging Berkeley, BlueWave Healthcare Consultants and LipoScience “routinely” paid kickbacks to physicians to convince them to order tests. LipoScience was later dropped from the suit, because what it had done was “significantly less egregious” than the others.  Later, Health Diagnostic Laboratory, Singulex and Quest Diagnostics — a company that purchased Berkeley in 2011 — were added to the suit.

In January 2012, Quest Diagnostics decided to stop offering the payments to physicians.  When the payments stopped, Mayes noticed physicians stopped ordering the tests.

“Once they stopped paying for the tests, the number of tests ordered was drastically reduced,” Gaudette said. “In my opinion, money had a lot to do with it.”

According to the federal complaint, Quest then tried to get doctors to continue ordering the tests by offering to pay phlebotomists’ salaries and leasing office space from the practices, among other things.  One cardiologist said his practice was bringing in $17,000 a month by ordering the tests, or about $200,000 a year.

In June 2014, the Office of Inspector General issued a special fraud alert about these payments to physicians.

In 2015, Health Diagnostic Laboratory and Singulex agreed to pay $48.5 million to settle claims that they violated the False Claims Act.

And in 2016, Quest Diagnostics agreed to pay $6 million to settle the same allegations.

Mayes testified as a witness for the government — the only whistleblower to do so — in January 2018 in Charleston. Three individuals associated with Health Diagnostic Laboratory and BlueWave chose not to settle and were tried by jury. The jury sided with the government after the two-week trial. In May, a $114 million judgment against the three was announced.

Health Diagnostic Laboratory filed for bankruptcy, and trustees have since filed suit against individual physicians who received a “significant” amount of money from the kickbacks, Mayes said.

Mayes, and the other whistleblowers, helped put an end to the scheme.  Part of choosing to talk about the case, Mayes said, is because he believes patients should be aware of fraud, and those who commit it should be held responsible.

According to Medicare.gov, here are a few precautions patients can take to protect themselves from fraud:

▪ Save dates, receipts and statements for healthcare services you receive.

▪ Compare your records with statements from Medicare to make sure the services and dates match up. If those records don’t match, it’s possible Medicare was billed for services you didn’t receive.

▪ If a charge seems incorrect, call the provider’s office to inquire about it.

▪ If you suspect there is Medicare fraud, report it online or by calling 1-800-633-4227.

Last September, a bill was passed by the Pennsylvania Judiciary Committee which would limit punitive damages against nursing homes who are found guilty of neglect, abuse, and other misconduct. The specious argument for the bill was that, without a cap on those damages, out-of-state lawyers were specifically targeting nursing homes and forcing them to pay so much money that the facilities would fall into bankruptcy, leaving elderly people who couldn’t take care of themselves without a place to go. The end result would be an entire state where there are no nursing homes or long-term care facilities because no business would want to risk it.  A ridiculous argument without any basis in reality.  Punitive damages are meant to deter the repetition of the conduct so that the neglect and abuse does not happen again.

When the bill went to the Pennsylvania House of Representatives, it was struck down in a 103-91 vote. Those in opposition to it argued that there were so few cases like these in Pennsylvania each year that those claims and predictions were unfounded. Most cases against nursing homes resolve before trial because those facilities fear what a jury might award after hearing about the abuse and neglect suffered by the residents because of corporate greed and mismanagement.

No one wants a business which neglects or abuses the elderly to have a lighter punishment purely out of reverence for the job they were supposed to but did not do. The nursing home industry and their well paid lobbyists will continue to attack the constitutional right to a jury trial to avoid accountability for their acts of greed and indifference to the safety and well-being of the vulnerable adults in their care.

In the U.S., there are currently 133 nursing homes which care for tens of thousands of military veterans every year through the VA and other government services. Of those, 60 have earned the lowest possible score on their own rating scale and 100 have been deemed lower in quality than private nursing homes, which have also be shown to have massive issues with neglect and abuse nationwide. Often the VA facilities are run by for-profit management companies but numerous reports show that VA nursing homes are poorly managed and often dangerous to patients in general.

And these numbers don’t just exist in the abstract either. Every day, veterans who reside at these facilities are suffering. Real people who served this country, thousands of them, are dependent on the government for quality care as they age. These people are sick, mentally and/or physically, they are in pain, and they need the support they were promised. Where they should reasonably expect clean and healthy conditions, they may instead find dirty and sickening ones. Where they should be getting regular attention to their wants and needs, many instead live with overworked staff who cannot give them more than the bare minimum of their time. Where aging veterans deserve to live in the most comfort possible, they are more likely to suffer pain and neglect.

The most obvious solution here is a major government intervention and a revamp of the VA nursing home system. But the problem here lies not only in the quality of care our veterans are receiving, but also with the way the government is treating the problem. When speaking about this data, which doesn’t present the government’s treatment of veterans in a very positive light, the acting VA Secretary said it was “fake news.” While this is going on, the president has recently ordered a new head of the Department of Veterans Affairs in an attempt to remedy this nationwide issue, but the attention seems to be placed more on subsidizing private care for veterans than anything else currently.

In any case, the United States has shown its commitment to its veterans through history and policy. Every day these veterans are allowed to live in such neglectful situations is one where that commitment is betrayed.

McKnight’s reported that a judge has ordered the appointment of a special prosecutor to investigate an $80,000 wire transfer from a nursing home owner to a former state senator’s construction company — money that allegedly moved just days after the lawmaker introduced an amendment to limit negligence claims in Arkansas.

Sebastian County Prosecutor Dan Shue asked for an outside investigator to avoid any potential conflict of interest. The Times-Record also reported that Shue has asked the local U.S. Attorney to determine whether the wire transfer violated any federal law.

Jake Files (R), the one-time Fort Smith lawmaker at the center of the case, pleaded guilty in January to unrelated charges and is scheduled to be sentenced June 18. He faces counts of wire fraud, bank fraud and money laundering in relation to improper use of state improvement funds intended for a local sports complex.

The Times Record first discovered the 2014 nursing-home related transfer in civil court documents last year.

The money came from David Norsworthy, part owner in a dozen Arkansas nursing homes. It followed on the heels of a constitutional amendment that sought to limit damage lawsuits — like negligence claims commonly pursued against nursing homes — to $500,000.

That amendment failed then, but it found new life in the current session, before Files resigned in January.

Neither Files nor Norsworthy have explained the $80,000 transfer with media or in court.

The Arkansas Times reports the case has become an issue for those who support  limiting lawsuits through Issue 1, a bill that has been publicly backed by nursing homes, doctors and chambers of commerce.

The Arkansas Times reported the suspicious and mysterious payment from the nursing home industry to legislators considering tort reform.  The Southwest Times Record continues its excellent reporting on a mysterious payment sent by a major player in the nursing home lobby to a company owned by former state Sen. Jake Files (previous coverage on Arkansas Blog here). Files pleaded guilty in federal court earlier this year to unrelated charges of wire fraud, bank fraud and money laundering.

An $80,000 wire transfer from a nursing home executive (a business partner of nursing home magnate Michael Morton) was sent to Files’ company in 2014 just a week after an effort was filed to legislatively refer a proposed constitutional amendment to voters that would have limited damages in civil lawsuits. The situation looks smelly enough that a county prosecutor recently wrote a letter to a federal prosecutor asking whether the transfer had been made in “violation of federal law,” an FOI request by the Times Record revealed.

Previous reporting by the Times Record uncovered the $80,000 wire transfer to Files’ Fort Smith company FHH Construction from David Norsworthy, part-owner in more than a dozen nursing homes in the state with Michael Morton. The transfer took place on Nov. 24, 2014 according to documents provided to the Times Record. A week earlier, on Nov. 17, 2014, a resolution was filed by Sen. Eddie Joe Williams, one of the nursing home lobby’s most reliable soldiers, to send a proposed constitutional amendment limiting civil damages to voters.

That resolution ended up dying in committee (a follow-up attempt to get the measure on the ballot by petition was ultimately blocked by the courts). However, a similar effort in 2018, co-sponsored by Files, will be on the ballot as Issue 1 this fall, the so-called “tort reform” amendment. The measure is strongly supported by the nursing home lobby. It would impose caps on the damages that places like nursing homes would have to pay out if a jury found that abuse led to pain, suffering, or death.

Norsworthy — who in addition to co-owning nursing homes has also been a business partner of Morton’s in a health insurance company for Medicare Advantage patients, Arkansas Superior Select — is a board member of Arkansas Health Care Association, the lobbying arm of the nursing home industry (which is pushing hard for Issue 1). In 2014, when Morton’s term was up for his seat on the state commission that oversees the issuance of permits to nursing homes, Governor Hutchinson tapped Norsworthy to replace him (Morton was under federal investigation at the time). Norsworthy continues to serve on that commission; his term is up this year but he plans to re-apply, according to commission staff.

Morton funneled large amounts of money in recent years to various candidates friendly to his interests, in part via a scheme arranged by Gilbert Baker, the former state legislator and lobbyist. The defrocked judge Mike Maggio pleaded guilty in 2015 to taking a bribe to reduce a verdict by millions of dollars in a negligence case involving one of Morton’s nursing homes, around the same time that Baker had arranged multiple contributions from Morton to Maggio for a planned campaign for Court of Appeals. Baker and Morton deny any wrongdoing and have not been charged.

Baker’s partner, Linda Leigh Flanagin, was with Baker when they approached Morton about Baker’s scheme to set up multiple PACs (thus dodging campaign contribution limits) that could funnel additional Morton dollars to candidates, including Maggio. In a deposition, Flanigan also described meetings she had with Morton to discuss efforts to enact “tort reform” to limit damages for maltreatment by nursing homes.

As for Files, about six months after his company received the $80,000 from Norsworthy, he received a $30,000 loan from lobbyist Bruce Hawkins, as first reported by the Arkansas Blog.  Hawkins’ name came up at the periphery of the Maggio case.  Hawkins had used the same attorney Baker had, Chris Stewart, to set up a series of political action committees for a similar bundling scheme. Those PACs received some of the money aimed at Maggio. In a deposition, Hawkins testified that he moved to distance himself after he got tied up through news articles in the effort to aid Maggio, in part by a contribution made by Stewart from one PAC without Hawkins’ approval.

Files got into his own hot water with federal investigators in a separate matter related to misuse of General Improvement Fund money appropriated by the legislature in 2016 and pledging a forklift he did not own as collateral for a $56,700 bank loan. Files admitted to misdirecting more than $25,000 in taxpayer money for a sports complex his construction company was supposed to build and pocketing GIF funds for personal purposes. He faces sentencing in federal court this summer.

Skilled Nursing News reported that a federal bankruptcy judge approved HCR ManorCare’s prepackaged Chapter 11 plan to emerge from bankruptcy under the ownership of its landlord, Quality Care Properties (QCP).  QCP will lose its status as a real estate investment trust (REIT).  The action means ManorCare is the largest long-term care chain which operates 295 skilled nursing and assisted living facilities to go through the process over the last decade, according to Reuters.

Under the new management team, ManorCare will begin the process of selling off 74 facilities, as previously reported.   The judge’s approval also means that former CEO Paul Ormond’s sizable payout will go forward as planned, with Reuters pegging the final total at $116.7 million.