July 26, 2014

Calls to Step Up Funding of the Elder Justice Act

by Levin & Perconti

As we have discussed previously in this space, state and federal governments are active in monitoring nursing homes for neglect and abuse, and promulgate rules and regulations that facilities must abide by in order to keep their doors open, as well as to reap any funding through programs like Medicare and Medicaid, for example. While we focus much on Medicare and Medicaid, as well as Illinois’s own Nursing Home Care Act and efforts of the Illinois Department of Public Health (IDPH) to gather data on nursing homes and hand down penalties for violations where appropriate, the United States Congress also can play a role. A 2010 law called the Elder Justice Act, which was a subpart of the overall Patient Protection and Affordable Care Act (aka “Obamacare” as used commonly), was enacted to help protect the elderly, including those in nursing homes.

Understanding the Law

The Elder Justice Act gives federal funding and resources to deal with the neglect, abuse, and exploitation of elderly people across the country. Its mission is prevention and reform. The law principally required the U.S. Department of Health and Human Services (HHS) to create an Elder Justice Coordinating Council as well as an Advisory Board on Elder Abuse, Neglect, and Exploitation. The purpose of the Council is to make recommendations within Health and Human Services to help coordinate the department’s work along with the Department of Justice and other federal, state, and local agencies in order to gather information on elder abuse and combat this endemic problem.

The Council must also periodically report to Congress on its activities and accomplishments, as well as issues that it must still deal with and try to fix. The Advisory Board similarly advises the Council and makes recommendations as to how it should operate and what its strategic plans should be both in the near and long terms. The Act empowers the agency, Council and Board to work to incentivize elder care training for staff of nursing homes, and to help these facilities in whatever ways it can to improve care and reduce errors, while maintaining a level of reporting on facilities where abuse and criminal acts are committed. The Act also provides federal dollars through grants and other means to state and local adult protective services to investigate and prosecute incidents of elder abuse.

There has recently been a call for the Obama Administration and Congress to step up funding for this law, which to many people has been lackluster in its duties in large part because of lack of funding. Millions of elderly people across the country are abused each year, and billions are spent in medical care (although the money is of course entirely secondary to the actual horrible abuse and trauma suffered). The Administration proposed approximately $25 million of funding for the Elder Justice Act in its budget to go toward the enumerated activities to help improve data collection and to help develop better methods of discovering and preventing abuse of the elderly. A Senate subcommittee that deals with expenditures, however, cut that proposed amount down to about $15 million, making it even more lackluster. In early July the DOJ and HHS released an Elder Justice Roadmap Report to show what initiatives must be taken to help stop elder abuse and neglect.

See Other Blog Posts:

Nine Figure Settlement Goes Through in Omnicare Case

Warning Signs in Nursing Home Selection Process

July 24, 2014

Congress Slow to Combat Elder Abuse and Neglect?

by Levin & Perconti

As federal and state agencies, including those of Illinois, continue to grapple with the issues of elder abuse and neglect, the United States Congress has been slow to act on the pressing need to detect and combat elder abuse, neglect and exploitation. Such abuse can occur in a number of ways that include but are certainly not limited to physical violence, verbal abuse, emotional and mental trauma as a result of such treatment, as well as financial exploitation, and a lack of care that leads to malnutrition, illness, permanent injury, and death. Elder abuse continues to remain a problem, and it has been on Congress to try to fix this. The Elder Justice Act, as a subset of the Patient Protection and Affordable Care Act (i.e. “Obamacare”), was a legislative effort to help guide these efforts on a more national scale. Through creating a Council and Advisory Board, the law sought to empower federal health officials to step up data gathering and the development of strategies and ideas to fix the problem of elder abuse. The law also funds these efforts, although recent calls have come for increased funding. Congress has also sought to tackle this problem in recent years through other legislation, although these bills have either failed miserably or failed to get the traction they have needed to come out of committees and go to the floors of Congress for actual votes.

Continue reading "Congress Slow to Combat Elder Abuse and Neglect?" »

July 22, 2014

Sobering Statistics on the Elderly Population and Abuse

by Levin & Perconti

The National Center on Elder Abuse’s (NCEA) Administration on Aging publishes on its website a bevy of statistics on the elderly population, as well as the severity of elder abuse, neglect and exploitation. While poring through numbers can be a boring task and can sometimes dilute the true visible reality of how elder abuse impacts elderly individuals as well as their loved ones (at least the loved ones not committing the acts), certain statistics can be so mind-boggling and sobering that there can only be a call to action in reaction.

Some significant statistics at the outset of any data review demonstrate the significantly growing elderly population in the United States. Much of the recent information is based on the U.S. Census, which is conducted every decade, with the most recent being 2010. According to the 2010 Census, the U.S. has had the highest number of Americans aged 65 and older in census history. There are approximately 40.3 million elderly Americans, which comprises 13% of the total population, according to the NCEA data. Projections show that by the year 2050, this age group will make up one fifth of the U.S. population, with those 85 and older being the fastest growing. Anyone knowledgeable of basic U.S. history and math can obviously trace this back to the Baby Boom generation, born soon after World War II. The 85 and older segment will expand from 5.8 million in 2010 to 19 million in 2050!

Continue reading "Sobering Statistics on the Elderly Population and Abuse" »

July 19, 2014

July is Elder Awareness Month

by Levin & Perconti

We previously wrote in this space about two very important events to help raise awareness for adequate care for patients in nursing homes and long term care facilities. These two events were the Nursing Home Staffing Public Awareness Campaign, as well as the marking of the calendar for the Residents’ Rights Month, which is a month dedicated to awareness for safety and care in nursing homes, and has expanded and grown over time thus demonstrating the importance of awareness for these issues.

Negligence and abuse are issues that afflict nursing homes, and it has taken concerted efforts on the part of state and federal authorities to weed out these horrible practices and push facilities to hire competent and caring staffers, and to fix how they operate on the whole to ensure patients receive the requisite care. Now, in Illinois, Governor Pat Quinn has proclaimed the month of July as Elder Abuse Awareness and Prevention Month. This coincides with the ongoing annual campaign by the Illinois Department on Aging. While this proclamation designates a month dedicated to a serious issue that spans beyond just nursing homes, it is of course important to nursing homes.

Combating the Problem

Elder Abuse Awareness focuses on negligence or willful acts against vulnerable adults who are aged 60 years or older. As reported, each year approximately 5% of elderly adults are victims of abuse in the state of Illinois, amounting to approximately 100,000 individuals, which is an incredibly high number. Just as is seen in nursing homes and care facilities, the elderly can suffer from dehydration, malnutrition and poor hygiene as a result of neglect by caretakers. They can also suffer from injuries like cuts, burns or broken bones as a result of accidents and falls because they are not properly supervised, and these injuries are compounded where they are not treated or are not properly treated. Elderly people can also suffer psychological trauma as a result of physical injuries and abuse, as well as verbal and emotional abuse.

Continue reading "July is Elder Awareness Month" »

July 18, 2014

Another Sad Story - Abuse and Neglect at Illinois Nursing Home

by Levin & Perconti

In another tale of unfortunate and sad happenings at nursing homes, a nursing home staffer working at a facility in Quincy, called Sycamore Healthcare, was arrested on allegations of beating a 64 year old patient at that facility. According to reports, the patient suffered head injuries after the staffer allegedly struck him in the face. The Quincy Police Department investigated and arrested the staffer, charging him with Aggravated Battery to a Disabled Person.

IDPH Investigation

The Illinois Department of Public Health also investigated the matter, demonstrating how in addition to a serious criminal case, this is also a case of concern to state authorities, and specifically state health authorities that govern nursing homes and long term care facilities. Sycamore Healthcare itself, according to public records, has had a relatively clean history in the last year or so. The last known citation occurred in the 3rd quarter of 2013. A survey of Sycamore Healthcare in Quincy as of August 1, 2013, resulted in citations of Type A violations under 6 different subsections of the relevant state code, as well as Type B violations under 2 more subsections. The total fines resulting from the Type A violations and Type B violations was $25,000, which had been doubled as required under the law for certain specific types of Type A violations that amounted to what were particularly high risk activities. Another August 1, 2013 report for that same 3rd quarter of 2013 filed with the U.S. Department of Health and Human Services Centers for Medicare and Medicaid Services also showed that Sycamore had a particularly high risk for falls by patients.

As one can imagine a fall can result in any number of injuries to and part of the body, and could include broken bones, cuts, burns, scars, concussions and other injuries. As the report states, the nursing home failed to take appropriate measures to prevent patient falls, such as when a nurse removed the side rails of a patient’s bed after determining they were restraining the patient, only for the patient to then fall from his or her bed, sustaining a head injury and then dying as a result. This patient who had severe cognitive impairment was found to have a dark purple bruise on their chin and a finger, presumably from a fall. Just before all this, the patient was found to have injuries to the foot and ankle after that patient’s foot was stuck in a bed side rail overnight, and one particular registered nurse told the nursing assistance who discovered this that in spite of redness and swelling of the foot, that no report needed to be filed because there did not appear to be an injury. Thus the discovery of that patient’s stuck foot was never even reported.

There were additional details on the injuries to the Sycamore patient in the latter half of 2013, although since then there had not been any negative reports found in the public record until the news of the Sycamore staffer who beat a patient resident. For those concerned with abuse, it is vital to carefully assess the history and record of a nursing home, and where abuse or neglect is suspected, it should be reported. Criminal behavior in particular should never go unpunished, and a victim and their families should always know what their legal rights are with regard to the abusive staffer and the facility in general when such an incident happens by contacting a competent lawyer in the field.

See Related Blog Posts:

The Future of Elder Care? Shifting Care to the Home and Community

Concerns about Care? The Astoria Place Nursing Home

July 16, 2014

Gainesville Nursing Home CEO Settles Medicaid Fraud Charges

by Levin & Perconti

The federal government has made a concerted effort to weed out fraud committed by companies and individuals. A key tool in doing so has been the False Claims Act, which allows for the U.S. government, or individuals on behalf of and usually in conjunction with the U.S. government, to bring suit against the alleged fraudsters to recover this money as well as penalties for the illegal activity. A particular area where the government prosecutes and recovers for fraud is in the healthcare sector, specifically as to Medicare or Medicaid fraud in nursing homes. Given that states administer these programs with federal funds and their own funds, states also have a serious stake in the matter. Sometimes states themselves will bring prosecutions to recover for money stolen as well. States have fraud units, and sometimes even units specific to Medicare and Medicaid fraud. For example, earlier this month, two women in Gainesville, Florida pleaded no contest to grand theft charges based on charges of Medicaid fraud. These charges were brought by the Florida Attorney General, as the investigation originated in the Attorney General’s Medicaid Fraud Control Unit.

Details of the Case

The two women were the CEO and Assistant CEO at an entity called The Council on Aging of Florida, which operates multiple health care facilities. They were accused of using federal Medicaid dollars to pay themselves and one of their sons, who worked for them, excessive salaries totaling more than $1.8 million for 6 years. They were also charged with misusing money to make payments on mortgages, vehicle, credit cards, utilities, Internet and travel. It was estimated that the total fraud, as of January 2013 and assessed by the Florida Attorney General, was approximately $2.75 million.

Continue reading "Gainesville Nursing Home CEO Settles Medicaid Fraud Charges" »

July 11, 2014

Show Me the Money (Even if We Didn’t Sign a Contract)

by Levin & Perconti

When admitting a senior to a nursing home, as with most care scenarios in the healthcare sector, a contract must be signed between the facility and the resident/patient. As with any service, this contract will lay out the terms of the patient’s stay, including care to be received, as well as payments to be remitted to the facility by the patient him or herself, or through partial or full payment from an insurance policy (private, Medicare, Medicaid, etc.). As the Act states under Section 2-202(a), “Before a person is admitted to a facility, or when the source of payment for the resident’s care changes from private to public funds or from public to private funds, a written contract shall be executed between a licensee [the facility] and [the patient].”

Nursing Home Contract Issues

A problem may exist where a nursing home or long-term care facility does not get the proper signatures to memorialize the agreement of services and payment between it and the patient or the patient’s representative or family. This may be because of the haste with which a patient must be checked in for care, or if a staffer simply “screws up” pure and simple. In these cases a patient may receive care for days, weeks, months, or possibly years without actually having signed the formal agreement with the facility. In not having a signed contract, the facility technically has violated the aforementioned law that a contract be executed prior to the patient’s admission. The question that arises is whether or not a patient or his or her family must pay for services if the contract was never signed and thus the facility failed to follow the law. In general under the law, in the absence of a signed contract, sometimes one party will owe another under a certain theory that recognizes the value of services rendered and the assumption that the one side would pay, even if nothing was signed.

The answer in Illinois, until just recently, was that facilities could seek payment for services rendered where a contract was not signed, but only in a narrow theory of law. In a 2010 appellate court case called Carlton at the Lake, Inc. v. Barber, the court held that a nursing home could collect, if it proved it was entitled to the payments, on unpaid bills even in the absence of a signed contract under the legal theory called “quantum meruit” that provides for reasonable payment for services already rendered even without a contract. However, a significant caveat was that there could be no actual claims under a “breach of contract” theory. Thus in more useful layman’s terms, the contract never existed, but given that the facility did provide services to the patient who willingly accepted them, the patient did owe a payment of reasonable value for those services.

Now, however, this same first district appellate court reopened the question, deciding it would reconsider its dismissal of the breach of contract claim, while the possibility of payments for services rendered would stay alive. This reversal is on the basis of another Illinois Supreme Court case, which had similar circumstances and in which the Illinois Supreme Court decided that a breach of contract claim could also be considered in these circumstances. Thus while the Carlton case has not been re-decided yet, it appears that based on another ruling at the state’s highest court, nursing home facilities have multiple theories on which to base a claim for unpaid bills where a contract was never signed.

See Other Blog Posts:

High Court Dismisses Nursing Home Whistleblower’s Claim

The Finances of Proper Elder Care: Medicaid and Nursing Homes

July 10, 2014

Elder Neglect Example - Facility Fined for Multiple Violations

by Levin & Perconti

Earlier this year, a nursing home facility in upstate New York was hit with a hefty fine for a number of deficiencies in its failure to give proper care to its patient residents. This was the second in the last few years, as a prior $8,000 fine levied on the home in early 2012 was again for multiple deficiencies discovered in 2010. The most recent fine of $44,000 handed down in early 2014 was as a result of a survey performed on multiple dates over the course of 4 months in early 2011.

The Poor Elder Care
The upstate New York nursing home was cited by the New York State Department of Health for a variety of offenses uncovered during a survey examination by health officials. These included a failure to properly supervise the residents, and consistent with this was a failure to avoid certain accidents. Additionally, the home failed to ensure patients were properly hydrated. On top of this, staffers did not promptly notify doctors of the results of laboratory tests so that those results could be assessed and acted upon where necessary. Along the list of code citations are constant references to “quality of care” and “quality assurance.” And lastly, there is also at least one reference to “administration” or “administrator,” presumably adding to the charges a failure to properly keep records or possibly to ensure proper paperwork is filed and handled the way it should.

For the inspection report period from June 2010 to May 2014, this very facility experience substantially more deficiencies than facilities across the Empire State. For example, this upstate nursing home was cited for 69 standard health deficiencies over this time, while the statewide average was only 23. Its 10 life safety code deficiencies equaled the statewide average meaning that total deficiencies at the facility compared with the statewide average was 79 to 33. Furthermore, the amount of deficiencies “related to actual harm or immediate jeopardy” stood at 22, whereas the statewide average was a mere 1 (yes, one). Lastly, the percentage of deficiencies “related to actual harm or immediate jeopardy” was 28%, versus the 4% statewide rate. As of September 2013, the facility was reported to have not had adequate pest control; a nurse administered a serious painkiller to a patient with back pain absent a doctor’s order to do so; and a staffer restrained a dementia patient in their chair for a day which violated rules against unnecessary physical restraint. These are just some examples of what led to the serious citations for this facility.

Identifying Dangerous Nursing Homes
It is thus no surprise that this particular nursing home was at one point on a federal list of homes nationwide that have a history of poor quality of care for residents. Apparently, though, it was taken off this list, presumably because it had already started making the required changes under federal and state regulations that would keep it from the possibility of being shut down.

This example of violations and deficiencies underscores the importance of looking at a nursing home’s history. It is also important to keep in mind how sometimes violations do not come to light in a final report and financial fine or penalty right away. As was the case here, 2011 violations culminated in a 2014 penalty in New York. Nevertheless, researching these facilities in both state and federal records is vital before choosing one.

See Related Blog Posts:

Warning Signs in Nursing Home Selection Process

Monitoring Prescription Drug Use in Nursing Homes

July 8, 2014

Securing Proper Elder Care for Those with Mental Illnesses

by Levin & Perconti

In taking up residence at a nursing home or long-term care facility, a resident may be there for any of a variety of reasons, and possibly multiple reasons. Sometimes they are physical, as in the person is disabled from an injury or possibly a stroke, and requires round the clock attention and care. Other times, it is primarily mental, such as the person has severe emotional problems, or possibly suffers from dementia or Alzheimer’s. In any case, the Illinois Nursing Home Care Act is meant to address the quality of care for patients suffering from any injury or disability, and this includes patients with mental health needs.

After a growing and disturbing history of negligence and abuse occurring in nursing homes across the country and particularly in Illinois, the state government created a task force to assess issues of physical and sexual abuse, abuse of drugs, and other various problems that went on at facilities. The Illinois Nursing Home Safety Task Force issued a Final Report that noted particular deficiencies in nursing home care for those with mental illness. For example, the report stated that “many people currently admitted to nursing homes with serious mental illness would be better cared for in specially designed and monitored community residential settings.” To this end, the task force recommended that the process of assessing patients and referring them to community-based environments where appropriate for the best possible care. As the report also states, these community-based settings will typically be community housing where the patient’s needs can be addressed more directly. For nursing homes that still wish to be viable as a center of care for the mentally ill, the report indicated that those facilities obtain a special certification for dispensing that type of care. The report also recommended raising the general standard of care for the mentally ill.

Continue reading "Securing Proper Elder Care for Those with Mental Illnesses" »

July 3, 2014

Warning Signs in Nursing Home Selection Process

by Levin & Perconti

In a U.S. News article a couple of months ago, a number of negative traits of nursing homes was discussed. The material is worth reviewing, because it offers critical advice for local residents going through the elder care process.

For any patient or family member of a patient, finding the right nursing home can be very stressful. With reports of neglect and abuse coming out too often, patients and their loved ones must carefully vet nursing homes and long-term facilities to ensure that the patient will receive the proper care and treatment, that staff will be attentive, and that the facility will operate at a minimum up to state and federal standards. On top of this, nursing homes are typically very expensive, and not everyone will qualify for Medicare and Medicaid payments, or for significant coverage by insurance. According to the U.S. News article, the median rate for a single room in a nursing home is $87,600 per year. This number derived from a survey of more than 14,800 nursing home care providers.

The article first points to the need to know a facility’s history of statutory or regulatory violations. States administer regulations over the management and standards at nursing homes within their territory, and the federal government, often in conjunction with states, enforces regulations that set the conditions for a facility receiving federal money through Medicare and Medicaid. This oversight generally leads to publicly documented records of violations that all those interested in nursing homes should research. For example, Medicare has a search tool (http://www.medicare.gov/nursinghomecompare/search.html), and so, too, does the state of Illinois (http://www.idph.state.il.us/about/nursing_home_violations/quarterlyreports.htm). Other third parties also offer such resources (http://projects.propublica.org/nursing-homes/). There are other resources as well. It is important to note both the quantity and quality of investigations and registered violations. Where a patient suffered injury, or was malnourished or dehydrated, for example, even if it happened a handful of times over a long time period, that may be a telltale sign. It is also notable where the facility may have a documented history of attempting to misreport or cover up such incidents.

Continue reading "Warning Signs in Nursing Home Selection Process" »

July 2, 2014

Illinois Injury Law Issues - Claims for Punitive Damages Die with the Patient?

by Levin & Perconti

Punitive damages are among the variety of damages to be won in a torts case, including those involving nursing home abuse and neglect.These damages, are meant to do just say: make an example of and punish the person who is liable for the wrongdoing that caused a plaintiff's injury. On top of this rationale, it is also meant to deter others from engaging in the same type of behavior that would lead to similar injury to others in the future.

Punitive damages, or at least the headline-grabbing ones, tend to be quite hefty, and are handed down by juries, or sometimes judges, as a demonstration of disgust with the defendant or defendants’ conduct, and to let others know that such behavior will not be tolerated. Punitive damages are not compensatory like more measurable economic damages, which compensate a plaintiff for lost wages, medical expenses, damaged property, and other items. Where compensatory damages are inadequate and disproportionate to the liability, punitive damages will likely be used.

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July 1, 2014

The Future of Elder Care? Shifting Care to the Home and Community

by Levin & Perconti

As previously discussed, the Patient Protection and Affordable Care Act has addressed many aspects of the health care sector, including nursing homes and long-term care facilities. The Affordable Care Act, or “Obamacare” as it has been colloquially known, has in broad respects sought to increase access to healthcare for many more Americans, while trying to keep costs down. One way of keeping costs down has been the “Balancing Incentive Payments Program” (BIP Program). It has been funded to the approximate tune of $3 billion, and aims at decreasing the costliness of care for those needing nursing homes by having patients receive that care at home. This has also been called “community-based” care. At least a dozen states have participated, including Illinois.

The New Elder Care Program

The Balancing Incentive Payments Program was conceived as a remedy to the costliness of using nursing homes. Specifically, it “authorizes to States to increase access to non-institutional long-term services and supports.” It accomplishes this by beefing up the Medicaid funds sent to states, which can spend that money on “home and community care” until September 2015 so long as certain conditions of efficiency are met. Many elderly and otherwise disabled individuals prefer to receive health assistance and care in their own homes, rather than be admitted for nursing home residency. Being treated and cared for at home allows them to be in familiar and comfortable surroundings.

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