July 3, 2015

Owner Makes Nursing Home Inhospitable to Push Residents Out

by Levin & Perconti

In the Prospect Park area of Brooklyn, New York, residents at the Prospect Park Residence nursing home have reportedly had to endure uncomfortable conditions, all because of the allegedly skewed priorities of the nursing home’s owner. The owner simply will not turn on the air conditioning at the facility, which undoubtedly makes for a miserable environment during the middle of another hot summer, all because he wants to push the residents to move out by making the conditions so inhospitable. There are only seven residents left to sweat out the lack of air conditioning. Apparently if everyone moves out and there are no more residents, the owner will be able to sell the facility. There had been a tentative deal in place to sell the building for $76.5 million, but on the condition that all residents move out. The owner had plans to sell since April 2014. The facility once housed 130 residents before decreasing down to the present seven. The refusal of remaining residents to move (and the refusal of their families to have the moved) has led to the real estate deal falling through.

Unsanitary and Unlivable

Local reports noted that the state Department of Health previously cited the nursing home for not correcting fire safety violations over the course of two years. The owner also failed to renew the facility’s license as required, and it was further reported that there were other problems related to sanitation and food service, leaky ceilings and peeling paint, bed bugs, and a failure to ensure residents were following restricted diets. To add insult to injury, the owner has even raised rates charged to residents.

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July 1, 2015

Governor Rauner Wants to Limit Community Care Funding

by Levin & Perconti

As we have seen, there has been a growing trend in community-based healthcare, which offers an alternative to the strictures of nursing home care. Through community-based care, patients can receive in-home visits or live-in aides to ensure that they receive the proper care, but have the freedom of being at home. This is also the case for hospital patients who, when released, can receive follow-up care at home to reduce the likelihood of having to be readmitted to the hospital with a relapse or more complications (such community-based care has been a staple of the Medicare expansion of the Patient Protection and Affordable Care Act).

With the restrictions of nursing home life, and the unfortunate incidents of abuse and neglect that can lead to illness, injury and even death, community-based has become a more attractive option for those who would be right for it. And Medicare funding and other insurance has expanded to cover the costs of such care for many in whole or in part. Illinois’ Community Care program provides visits for the elderly and infirmed to help them bathe, prepare food for them, and help them with otherwise routine chores that they cannot do or struggle to do on their own as a result of age or disability.

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June 29, 2015

Medical Care News: Affordable Care Act (Obamacare) Subsidies Upheld

by Levin & Perconti

Recently, the Supreme Court of the United States, in a landmark and headline-grabbing decision in King v. Burwell, ruled in a 6-3 vote that the Patient Protection and Affordable Care Act’s (the “ACA” or colloquially “Obamacare”) provision providing subsidies for healthcare does in fact cover every state, whether or not a state has its own healthcare exchange marketplace or if the federal government set up exchanges in states that chose not to set up their own. So far 37 states, including Illinois, do not employ state healthcare exchanges and thus rely on the federal exchange through www.healthcare.gov.

The case hinged largely on a technical reading of the relevant statute, but the end result is that all U.S. residents who qualify for ACA coverage on healthcare marketplace exchanges can receive subsidies that are intended to make healthcare insurance more affordable. Analysts in the industry believe that without those nationwide subsidies, insurance costs would have substantially increased and leave millions uncovered. A Chicago Tribune story covering the decision opened with the example of a Chicago area woman whose insurance premiums would have nearly tripled without subsidies she receives on the Illinois marketplace exchange under the ACA. Another person would have seen monthly premiums jump from $353 per month to $739 per month.

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June 26, 2015

Mysterious Deaths at Southwest Illinois Nursing Home

by Levin & Perconti

Once again, in a state with a historically poor record of performance when it comes to nursing home quality of care, incidents of abuse, and pervasive neglect, there have been two mysterious deaths that warrant investigation and possible legal action. At the Cahokia Nursing and Rehabilitation Center in Cahokia, in the southwest corner of Illinois, two elderly patients – a 76 year old man and an 86 year old woman – sadly died in seemingly separate incidents that, as reported, may have occurred as the result of neglect. In one instance, the 76 year old male resident died after choking on his oatmeal, and could not be properly resuscitated by staff because he was “tied to a chair.” The 86 year old woman was hospitalized after she threw up bile, and died one day later.

Both incidents occurred in April of this year. Local reports cited the nursing home director’s comments that other complaints had been lodged against the facility regarding the level of care provided to residents, though there were no further details. The latter incident has reportedly been investigated by the state police, and according to records there were two cases investigated by the Illinois Department of Public Health, and it is believed that these were the two incidents investigated, although this has yet to be publicly confirmed to do privacy rules. Based on the published investigation (linked above), the facility must come up with a plan of correction to fix problems.

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June 24, 2015

Illinois Close to Making Cameras Permissible in Nursing Homes

by Levin & Perconti

We have extensively blogged about the possibility of surveillance cameras in nursing home rooms. There has been an increasing push for legal permission to allow such cameras in rooms in order to capture any abuse or neglect inflicted upon residents by staff or fellow residents, or to even act as a deterrent to prevent such behavior. And now Illinois is on the verge of allowing for such cameras.

Why Use Cameras?

These are the core positives of the use of nursing home cameras. It allows authorities to investigate and potentially punish wrongdoers who physically or sexually abuse residents, who financially exploit them such as by stealing their stuff, or who fail to check in on them frequently enough. And the knowledge of these cameras can even act as a deterrent to those facility staffers who might otherwise neglect their duties, or who might think twice before hitting, restraining, or overdosing a resident.

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June 22, 2015

Resident in Nursing Home Van Crash Sues

by Levin & Perconti

Time and again we have heard of numerous incidents where nursing home residents become injured, sick, or even die as a result of negligence or abuse at the hands of nursing home staff at facilities. Residents wander off and fall downstairs when unsupervised, they are strapped to their beds for prolonged periods without being able to move and then develop sores, nursing home staffers choose to unnecessarily medicate residents to keep them subdued rather than use more humane and modern tactics, and they resort to abusing residents out of pure frustration, anger or even enmity.

These are just some general examples of the awful things we see that prompt government investigations – civil, criminal and regulatory – as well as civil lawsuits by victims or their family members for injuries or wrongful death. And yet such incidents do not even necessarily have to happen within facilities. They can happen outside when nursing home staff are still supervising (or supposed to be supervising). We’ve heard of a resident choking on lunch during an outside field trip because he was not properly supervised while eating. And in recent news in Illinois, a woman was severely and permanently injured while being transported in a nursing home van.

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June 20, 2015

Kaiser Foundation Publishes Nursing Home Rankings

by Levin & Perconti

In May, the Kaiser Family Foundation released findings about nursing home ratings across the country, focusing on all homes certified by Medicare and/or Medicaid. The news for some is great, while news for others may be cause for concern. The report cited a general improvement in conditions over the three decades since the 1987 Nursing Home Reform Act, but that there are still deficiencies and consequently citations that plague the industry.

As was reported toward the end of 2014 and early 2015, the federal government’s Nursing Home Compare website, which is used by the Centers for Medicare and Medicaid Services (CMS) to rate nursing homes for consumers, was largely deficient. Nursing Home Compare rates nursing homes on a five-star scale. The system was overhauled to rely more on frequent and unplanned inspections, measuring staff through payroll data, calculating quality of care by considering residents’ health status (such as noting particular conditions like pressure sores or certain injuries or illnesses), (through inspections, for example), and additional criteria. Consequently, many homes saw their ratings decline as a result of the adjusted metrics.

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June 18, 2015

Massive Medicare Fraud Takedowns

by Levin & Perconti

In what has been a heck of a month for new U.S. Attorney General Loretta Lynch, on the heels of the Justice Department’s headline-grabbing takedown and indictments of FIFA soccer officials, the DOJ, FBI, and U.S. Department of Health and Human Services (HHS) just announced the arrests of 243 individuals across the healthcare industry for Medicare fraud, including 46 doctors, nurses and other professionals. Companies that provide medical-related products and services were also implicated. The federal government uses robust false claims and anti-kickback laws to go after Medicare and Medicaid fraudsters who generally overbill for medical services or bill for fake or unnecessary procedures or treatments. The Patient Protection and Affordable Care Act of 2010 further strengthened some of these laws and provided more funding for the government to investigate and punish such violations. These programs insure the elderly and poor, generally speaking, and reimburse medical providers for treatment. This type of fraud is a direct financial assault on American taxpayers, and carries with it harsh civil and criminal consequences, including steep financial penalties and even jail time.

243 Arrests

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June 16, 2015

Turn Back the Clock: 1998 Nursing Home Initiative

by Levin & Perconti

Back in the summer of 1998, President Bill Clinton announced his administration’s new initiative to further strengthen existing nursing home laws and regulations. We previously covered the 1987 Nursing Home Reform Act as one of the landmark and foundational laws that was the precursor to modern federal and state laws and enforcement mechanisms that govern nursing home standards and practices across the country. After further reforms in 1995, the Clinton Administration’s 1998 Nursing Home Initiative (NHI) aimed to further boost effectiveness of government enforcement. This came on the heels of a report by the Health Care Financing Administration that cited some deficient enforcement mechanisms in the then-current survey and certification process (though it is worth nothing the report found the prior decade’s enforcement process as overall successful in improving conditions for residents). The Initiative also came on the heels of a hearing before the Senate Committee on Aging, and a Government Accountability Office report.

What were the Fixes?

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June 13, 2015

Chicago Area Nursing Home Resident Wanders Out of Facility Unattended

by Levin & Perconti

In the field of nursing home care, we have seen time and again the severity of abusive nurses, nursing aides and other staffers who take out anger and frustration on innocent residents who are there because they need round-the-clock care and attention. Physical, sexual, verbal and emotional abuse is unacceptable and does not only just lead to regulatory sanctions and civil lawsuits, but criminal charges of the alleged wrongdoers as well. Neglect of residents, though, is another serious issue that has landed facilities and staffers in hot water both in terms of employment and legally. Wandering and elopement are incredibly dangerous threats to the well-being of nursing home residents that result from particular negligence by staffers.

What are Wandering and Elopement?

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June 10, 2015

Illinois Medicaid Cuts Could Hurt Nursing Homes

by Levin & Perconti

In still tough economic times, everyone is looking to tighten their belts. This includes individuals, families, businesses, and governments. With a new governor sworn in several months ago in Springfield, a new administration is now working with the legislature on the state’s budget for the next fiscal year, and unfortunately there have been proposals to make substantial cuts to a variety of areas, including healthcare. This includes cuts that would directly affect nursing homes, their employees, and their residents. Governor Bruce Rauner had originally proposed a $1.5 billion cut to Medicaid, which pays for health care services for low income people and the disabled, as part of the new budget which would drop Medicaid spending to about $19 billion. Medicaid covers many different areas of health care, including physicians, hospitals, and even nursing homes and long-term care facilities, and states administer these programs even though they are also funded by federal dollars, so states take a keen interest in how this insurance is managed for its own eligible residents. At nursing homes, Medicaid is particularly vital because it kicks in for eligible patients when they no longer have enough assets to pay for care themselves.

Without it, they may very well not receive nursing home care. Under the earlier proposed terms, nursing homes would have lost $216 million. In more recent news, as negotiations have gone on over the budget, there has been a deal to at least cut Medicaid by $106 million for the coming fiscal year in order to put a dent in the overall budget shortfall, effectively reducing reimbursements rates by approximately 16.75%. This would reportedly include $65 million in cuts to nursing homes specifically.

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June 8, 2015

Arbitrators Accused of Unfairly Favoring Nursing Home

by Levin & Perconti

In states across the country, there have been battles between states and nursing homes, and between nursing homes and residents or their loved ones, over the use of arbitration provisions in nursing home contracts. When a family rushes a loved one in for care, particularly when they are frail or just came out of the hospital, they are likely to sign on the dotted line relatively quickly to ensure that the patient receives their care immediately. While it is on these parties to generally understand what is in these contracts, the same cannot be said for the specific arbitration provisions. These clauses are intended to require nursing home residents or their loved ones to waive their rights to take legal disputes with the facility to a jury trial in a court, and instead submit to binding arbitration, which is an out-of-court alternative dispute process.

While there have been conflicting decisions as to the validity of such contractual provisions as jurisdictions differ and certain provisions are considered on a case-by-case basis, some court shave found this mandatory arbitration to be a broad and ambiguous requirement which residents and their families, unless well-trained lawyers, could not impliedly or expressly consent to because they cannot truly understand the scope of what they are agreeing to waive. It is generally feared that arbitration provisions favor nursing homes who can hire high-powered expert attorneys, and because arbitration involves a separate set of rules, and the decision is made by one or a few arbitrators, as opposed to a jury of peers as contemplated by the U.S. Constitution.

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