AARP reported that AARP filed briefs in two cases arguing that signing a health care proxy regarding end-of-life decisions does not waive a nursing home resident’s right to have a jury decide his or her case.  The two disputes are now on appeal. Attorneys with AARP Foundation Litigation filed AARP’s friend-of-the-court briefs in both cases in conjunction with the National Academy of Elder Law Attorneys, arguing that signing a health care proxy is vastly different from signing over all legal rights. In particular, the right to a jury trial for disputes is a fundamental individual right enshrined in the state constitution that could not be waived ambiguously.

In 2011, Stephanie Johnson Leslie and Barbara Johnson – co-administrators of the estate of Dalton Johnson – filed a wrongful death lawsuit against the nursing home.  Defendants moved to dismiss the proceedings based on a clause in his nursing home admission contract that sent all disputes to arbitration, and a trial court agreed.

Plaintiffs argue that although Dalton Johnson had signed a health care proxy that was to govern specific medical decisions regarding end-of-life options, he had not given away his decision-making authority about all contracts. Specifically, he had not authorized anyone other than himself to make decisions about whether to obligate himself to arbitrate future disputes. Arbitration is a dispute resolution mechanism designed for business-to-business transactions and it does not provide the same public scrutiny, right to a jury trial, right to access evidence, adherence to precedence and other procedural protections lawsuits do; it can also be significantly more expensive.

Similarly, Rita Lacita suffered from Alzheimer’s and was admitted to a nursing facility run by GGNSC Malden Dexter. Her son admitted her to the hospital and while there signed the paperwork discharging her to GGNSC without fully understanding what he was signing and believing that if he did not sign all the documents the facility would not admit his mother. When he sued for wrongful death, that trial court found that the Massachusetts health care proxy statute permits agents only to make health care decisions, and the scope of that role did not include the authority to waive the right to seek legal redress in court.

In planning for incapacity and surrogate decision making, people consider who will be suited and qualified to make specific and separate decisions in the event of incapacity – decisions regarding financial matters are different from health care matters and require different skill sets. Merely designating a qualified health care agent does not indicate this person is intended to combine both roles. If a health care proxy is regarded as tantamount to a power of attorney for all affairs, people will be left at tremendous risk of signing away significant rights while assuming they are merely designating a medical decision maker.

Johnson v. Kindred and Licata v. GGNSC Malden Dexter are both before the Appeals Court of the Commonwealth of Massachusetts.

 

Matthew Fleischer is a former LA Weekly staff writer and an award-winning social justice reporter in Los Angeles.  He wrote a great article on the shady legal maneuvering rendering government oversight useless.  "Nursing homes in California are legally obligated to provide a bare minimum of 3.2 hours of daily personal care per resident."  In 2010, 42,000 Skilled Healthcare residents filed a class action lawsuit against the company for negligent care.  A jury found Skilled liable for $677 million. The company eventually negotiated that payment down to $50 million in a settlement, under the condition that it would submit to regular inspections by a special auditor, who would help ensure better care including proper staffing.

"So what did Skilled do? According to an investigative report in the North Coast Journal, Skilled farmed out management of several of its facilities to a subcontractor—while still making money on the facility by “renting” beds to the new company. Under the provisions of the lawsuit, a new owner wouldn’t be subject to inspection by the new auditor. Skilled pulled a fast one. Its stock jumped 25 percent overnight."

"The problem of elderly care providers abusing patients and getting away with it isn’t isolated to California, says Eric Carlson of the National Senior Citizens Law Center. He tells TakePart that big business nursing home conglomerates across the country, like Skilled Healthcare, are “creating a maze of convoluted corporate structures to avoid legal settlements. The operation that holds the nursing license likely doesn’t hold many assets.”

This protects them from any accountability caused by their business decisions to cut staff and training. 

The Fresno Bee had a great article on the problem with nursing homes altering or falsifying records.  Falsifying nursing home charts is an epidemic. It is standard practice in the vast majority of nursing homes. Of course, the defense lawyers say everyone makes mistakes but the chart is a legal and medical document where accuracy is key to good care.  Medications and treatments are documented as being given when they are not. Inaccurate entries have masked serious conditions in some patients, who ultimately died after not receiving proper care,  The article has a few recent examples from California:

A 77-year-old Cameron Park woman, Johnnie Esco, died in 2008 after suffering a fecal impaction so severe her rectum had dilated to 10 centimeters, or about 4 inches. The condition, in which the stool hardens and backs up in the body, is common in elderly or bedridden people and is known to be fatal.  The woman’s chart reflected that she had been having bowel movements in the days before her death – an assertion that medical professionals later said would be extremely unlikely, given the severity of her condition.

A supervisor at a nursing home admitted under oath that she was ordered to alter the medical records of a 92-year-old patient, who died after developing massive, rotting bedsores at the facility.  In a recorded deposition for the lawsuit, the director of nursing at Rosewood Terrace testified that she had been ordered by the facility’s administrator – along with a corporate representative – to alter the medical records to indicate that Ritter had arrived at the facility with "softened heels.
The corporate representative told the nurse "to falsify the medical records because the current records did not ‘look good’ and he was worried about a lawsuit," according to court papers.  Numerous suspicious and "downright fraudulent" chart entries were found involving at least seven different employees.
A nursing home was fined only $2,500 by the state for falsifying a resident’s medical chart, which claimed that the patient was given physical therapy five days a week. At least 28 of those sessions were documented by nurse assistants who were not at work on those days.

 

 

A woman severely injured at a convalescent home discovered a string of false entries – several written by nonexistent nurses.

A nursing home was fined $800 for making 12 false entries in a patient’s medication record because none of the medications was available in the facility at that time, according to the state-issued citation. The woman missed multiple doses of four drugs used to treat high blood pressure and a psychiatric disorder.

"While regulators have dogged facilities for years over fraudulent Medicare documentation, the issue of bogus records is more than a money matter. In California and elsewhere, nursing homes have been caught altering entries and outright lying on residents’ medical charts – sometimes with disastrous human consequences, according to a Bee investigation."

Some nursing home administrators to re-create medical records to hide neglectful care.
"The idea that they chart things before they happen or make things up way after the fact if something hits the fan – those are things that we’re familiar with," said Mark Zahner, chief of prosecutions for the attorney general’s Bureau of Medi-Cal Fraud and Elder Abuse.
"And we see (this) with regularity." Suspicious or sloppy record-keeping is so common they encounter some aspect of it in virtually every case they investigate.  It is part of the culture.  It is part of the training.

A Bee review of nearly 150 falsification cases reveals that residents are the victims of records fraud in California nursing homes.  The most common patterns include:
Covering up bad outcomes. A patient dies or is injured, and the nursing home staff or administrators rewrite the records to minimize blame or liability.
• Fill-in-the-blank charting. Overworked or lazy staff members take massive shortcuts, filling out charts en masse, not knowing whether treatments took place or if the information is accurate.
• Missing medicines. Medications are checked off as being given, but investigators later find unopened boxes or discrepancies with pharmacy records.

Less common are accusations that staff falsify consent forms to sedate patients, or backdate forged documents agreeing to settle disputes through arbitration.  Attorneys on both sides agree that a medical chart is an integral aspect of patient care – a changing, living record of big events and small.  The chart follows a patient, sometimes for decades. Other providers rely on its accuracy to determine care or revise treatment. An accurate chart leads to quality care. An inaccurate one can cause serious harm and cover up the lack of care. 

Elder abuse experts agree that fraudulent charting can be traced to understaffing. Public documents reveal tales of chaotic shifts on which certified nurse assistants are scrambling to provide care.
The Bee found several falsification cases in which nursing staff continued filling in the "activities of daily living" on charts of patients who were already dead.  Another incident where a nursing supervisor documented that she performed a 35-minute treatment on the elderly man on the day he was hospitalized eight miles away.

Sylvia Saucedo, a retired housekeeper who had been recuperating from pneumonia at Mission Terrace Convalescent Hospital in Santa Barbara. Four days after being admitted in January 2009, she fell, suffering a permanent brain injury.  The attorneys said they suspected that the director of nursing had rewritten the assessment to say Saucedo was, in fact, at low or no risk of falling when she checked in. If so, that would potentially diminish the facility’s liability.
Shortly before trial, the attorneys said they suddenly realized that their copy of the director’s assessment did not have enough holes punched in the margin to fit in the original binder.
"It was such an ‘aha’ moment," said Moore. "We thought, ‘These records were never part of her chart.’ "

In 2004, the California attorney general’s office relied on hidden-camera footage in an Escondido nursing home to charge 12 employees with felony elder abuse. Ten of the workers also were accused of the misdemeanor offense of falsifying medical records.
A year later, though, an appeals court found the employees had been improperly charged because the regulations applied to the facility’s owners, not its workers.
 

 

Erin Jordan from Eastern Iowa Government wrote an article regarding how Iowa taxpayers reimburse nursing homes for legal fees including fees defending abuse and neglect citations.  Eastern Iowa nursing homes sought Medicaid reimbursement for more than $2.2 million in legal fees, accounting fees and professional services in 2010.  The nursing homes get reimbursement even if they lose citation appeals or lawsuits.

All nursing homes receiving tax funds file annual cost reports requiring detailed information about revenue, expenses, equipment purchases, assets and employee statistics. The cost report allows nursing homes to claim expenses for legal fees. Legal fees are an allowable cost and are included in the calculation of the nursing home’s per-bed, per-day Medicaid reimbursement rate.

The Medicaid division of the Iowa Department of Human Services drafted a proposed rules change in late 2009 or early 2010.  The proposal would have forbidden reimbursement for legal fees when a nursing home is defending itself against a criminal or state civil action that it loses or when the Iowa Department of Inspections and Appeals succeeds in suspending or revoking the nursing home’s license.  The rules change also would have prohibited reimbursement for legal fees, expenses and costs for lobbying Congress or the Iowa Legislature.  No final draft has been published.

Medicaid also reimburses nursing homes for association dues for lobbying groups.  Membership dues accounted for more than $950,000 of the Iowa Health Care Association’s budget in 2009, according to the group’s tax report.

 

Levin and Associates had an interesting article in The Senior Care Investor discussing the bankruptcy and sale of IHS to THI and eventually Fundamental long Term Care Holdings LLc, owned and operated by Murray Forman and Leonard Grunstein.  Below are excerpts from the article:

Very few people remember what happened a little more than seven years ago, but in early
2003, an unknown entity (at least to the senior care world) stepped in at the last minute and snatched the remaining assets of a bankrupt Integrated Health Services (IHS) from the presumed
buyer, literally on the steps of the court house. Trans Healthcare Inc. (THI) thought it had the deal wrapped up for $97.5 million, but an entity called Abe Briarwood, backed by Cammeby’s
International, swooped in for $114 million in cash and was willing to assume the post-petition Medicaid and Medicare billing liabilities, something that made the court very happy.

We are certain that the founder of Cammeby’s, one Rubin Schron, had no idea where this initial acquisition would take him in the rough and tumble skilled nursing industry….  And, most certainly, he never thought he would now be in court pitted against a man he trusted with everything. After Cammeby’s made the winning bid at the 11th hour, THI at first tried to fight it, but then the two sides settled their differences when Cammeby’s hired THI to run the newly acquired IHS assets.  Then, in May 2004, we caught wind of an acquisition offer that was brewing for the former Mariner Health Care from none other than Cammeby’s, but under the name National Senior Care, and separate from its Integrated Health.  The purchase price for Mariner was just under $1.0 billion, and when you capitalized the lease payments, the total transaction value increased to about $1.25 billion. This resulted in a price per bed of $38,800 and a 9.2x multiple of annualized EBITDAR.  The
deal closed at the end of 2004, but perhaps the most longlasting impact on the target entity, which some time later had a name change to Sava SeniorCare, was the role that Mr. Schron’s attorney, Leonard Grunstein, came to play.
There were really two sets of problems that began to emerge. One was what transpired with the original acquisition of the Integrated Health assets and the role of Trans Healthcare, which eventually came to be known as Fundamental Long Term Care when Fundamental purchased the assets of THI, the sale of which some claim was under duress and fraudulent.  There is a separatelawsuit filed on July 1, 2010, against Leonard Grunstein, his brother Harry, Murray
Forman alleging, among other things, fraudulent conveyance, unjust enrichment, legal malpractice, fraud, breach of fiduciary duty, breach of lease agreements, tortious interference and aiding and abetting fraud. The lawsuit was filed by Allen Bodner and DMV Funding LLC and is seeking no less than $150 million in damages and no less than $300 million in punitive damages.
According to the complaint, Bodner owned 100% of DMV which purchased Cammeby’s loan to the Abe Briarwood/IHS deal, and there are 30 more pages as to what transpired among the various parties. The long and short of the complaint was that the plaintiffs believe they got screwed, to
put it bluntly, by people who were partnering with them and advising them
.
The more interesting lawsuit, but sort of related, was filed on June 22, 2010, with Rubin Schron and his various holdings as the plaintiffs against a similar cast of characters including Leonard Grunstein, Murray Forman, the law firm Troutman Sanders, and the various Sava and Mariner
affiliates. To fully appreciate how unusual this lawsuit is, one must always keep in mind that Leonard Grunstein was Rubin Schron’s attorney. ….Mr. Grunstein did much of the legal work involved in the Mariner acquisition and subsequent Opco and Propco set-ups that evolved over time.
The relationship between Mr. Schron and Mr. Grunstein dates back to the 1980s, and according to the complaint, he apparently has referred to himself as Mr. Schron’s “general counsel.” According to the complaint, Mr Schron relied on legal advice from his attorney who began to organize things to the benefit of the attorney, and on financial advisory services from Mr. Forman, who was allegedly in cahoots with Mr. Grunstein. Mr. Schron never wanted to have anything to do with operating the nursing facilities; he just wanted a steady, but increasing, rental stream from the
real estate. In the case of the Mariner acquisition, according to the complaint, Mr. Schron put all the money up and ended up owning the real estate in Propco, while Grunstein/Forman retained ownership of the operating entity created to run the facilities, and all the excess cash flow, plus they received a small share of Propco—all without investing any of their own money.  In addition, according to the complaint filed, Mr. Schron was charged $14 million for financial advice in the Mariner deal by MetCap Advisory Services, which was 25% owned by Mr. Grunstein and 25% owned by Mr. Forman.   Other allegations in the nearly 100-page complaint include loans made to Opco that were never paid back to Mr. Schron, distributions taken by the Grunstein/Forman group
totaling more than $70 million, Grunstein billing Schron for non-existent legal work, and for allegedly not giving Schron the final closing documents for the original Mariner acquisition.
One also needs to remember that all of this recent legal action is on top of several issues earlier this year, when Mr. Grunstein and Mr. Forman sued Mr. Schron for more than $100 million for allegedly misappropriating significant sums of money from various partnerships in which they all had a stake.

And don’t forget that all three of them were defendants together when the Department of Justice charged them all with accepting kickbacks from Omnicare in return for pharmacy contracts. Without admitting guilt, they settled and agreed to pay the federal government $7.8 million
and $6.1 million to certain states.

Over the past two years the owners of Sava (Mariner) have been trying to sell off various pieces of the company (or the whole thing), notably the portfolio of mostly leased assets in California, but with little success. The obvious problems were pricing and financing.  Currently, Sava is the seventh largest skilled nursing company in the country with 184 facilities and 21,279 skilled
beds, and it is larger than half of the publicly traded skilled nursing companies.   Still, we believe that selling the assets is a real outcome, especially for Mr. Schron who we assume wants to be done with his relationship with his former attorney and financial advisor, and may even want to be out of the skilled nursing real estate business altogether. The other side, however, may
still not want to give up their cash cow, but the courts and the credit markets may make the decision for them.

According to the AmLaw Daily, another disgruntled investor has filed a civil suit against Troutman Sanders, real estate partner Leonard Grunstein, and corporate partner Lawrence Levinson.   Also named as defendants are Murray Forman, an investment banker and business partner of Grunstein’s, Harry Grunstein, the lawyer’s brother, along with several entities created and controlled by the defendants that operate and control nursing home and health care investments.
The action comes after the three were named as defendants in a civil suit filed in state court in Manhattan by New York real estate investor Rubin Schron.

In this latest lawsuit, filed in New York State Supreme Court, plaintiff Allen Bodner accuses the defendants of legal malpractice and breach of fiduciary duty as part of a scheme to divest Bodner and a company he controlled of an interest in a lucrative health care and real estate venture.

Bodner’s 54-page complaint claims Grunstein, the former head of Troutman’s real estate capitalization and investment practice groups, "accounted for a substantial portion of the revenues of Troutman’s New York office, much of which was attributable to the legal representation of Rubin Schron and companies associated with him."   Grunstein served as his attorney and was the "mastermind" and "legal architect" behind a series of transactions named in the complaint. Bodner further claims that Grunstein concealed his "conflicting personal financial interests" in several of those transactions, which allowed Grunstein and the other defendants to misappropriate "the real estate and health care assets" that were under the control of Bodner and his holding company.

According to a letter filed by Coles in the Schron suit, several firms have lined up advisory roles as the litigation expands. Arent Fox, Latham & Watkins, Atlanta’s Arnall Golden Gregory, and New York’s Brodegaard & Simone are representing several companies named as defendants in the dueling civil suits. Grunstein’s brother, Harry, who now lives in Israel, has retained New York’s Davidoff Malito & Hutcher, while Troutman and Levinson have turned to New York’s Friedman Kaplan Seiler & Adelman.
 

The Washington Post reported OmniCare’s profits soared because of recent settlements for kickbacks decreased their anticipated legal defense costs.  Omnicare Inc., which dispenses drugs to nursing homes and long-term care facilities, said its profit almost tripled in the fourth quarter after it resolved allegations it paid kickbacks to nursing homes, and received money for buying and recommending drugs.

In June, Omnicare agreed to pay $98 million to settle the investigation. The terms were completed in November. The Justice Department said Omnicare paid $50 million to Mariner and Sava Senior Care owner/operators Murray Forman, Leonard Grunstein, and Rubin Schron to gain their business, while also asking for and getting kickbacks from two drug companies for recommending their products.

In the fourth quarter, the company said its profit rose to $80 million, or 68 cents per share, from $27.6 million, or 24 cents per share, a year earlier. Omnicare said it earned 74 cents per share from continuing operations, but that includes a tax benefit of 11 cents per share. Its revenue fell 2 percent to $1.54 billion from $1.57 billion

Analysts expected a profit of 63 cents per share and $1.55 billion in revenue, according to a Thomson Reuters survey.

The company reported a total of $5.7 million in pretax litigation costs in its latest quarter, compared to $48.1 million pretax a year ago.

Omnicare said its pharmacy services revenue fell 1 percent to $1.51 billion from $1.53 billion. The decline came from greater use of low-cost generic drugs, smaller reimbursement payments for certain drugs, and a decrease in the amount of beds served. The company said it did more business with assisted living facilities, which typically don’t buy as many drugs as acute care centers or other facilities it does business with.

Revenue from Omnicare’s clinical research business slipped to $34.3 million from $49.1 million.

In 2009, Omnicare said its profit jumped 51 percent to $211.9 million, or $1.80 per share, from $140.5 million, or $1.19 per share. Revenue decreased less than 1 percent to $6.17 billion from $6.21 billion.

 

 

There is a new website called www.laws.com. The website is free for users to use and is a great source of information for the general public regarding legal information. The following are points of information listed on the website:

* Listings of licensed legal professionals
* Blogging information
* Legal news around the country
* Additional resources for the users to take advantage of.

Many need the advice of lawyers but are not sure where to find one.  Websites like NewLawyer are helpful and can assist consumers and victims of malfeasance in finding the right lawyer for a specific problem or case.