February 27, 2015

New York Nursing Homes Acquire Guardianship to Get Paid

by Levin & Perconti

The legal concept of a “legal guardianship” confers upon others, typically a loved one of the person needing the guardianship, the responsibility to make the right decisions on behalf of someone incapable of doing so on their own – typically a child but also an infirmed adult. These can be touchy and risky subjects, and often residents of nursing homes will need to assign a power of attorney or legal guardianship to a loved one who may suffer from increasing dementia or Alzheimer’s, or old age just simply leaves them unable to make these important decisions.

A Dangerous New Trend

In recent news in the state of New York, there is a disconcerting trend among nursing homes in the state that are taking advantage of legal guardianship powers in order to ensure patients make good on their bill payments. Legal guardianship in New York, as in other jurisdictions, is typically meant for someone who cannot manage their money or is incapacitated and cannot care for themselves or make important health decisions. In one case documented in the New York Times, a New York nursing home filed a guardianship petition in order to take over legal guardianship for a patient. Such power would include the ability to make important decisions, as well as to control that patient’s money.

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February 25, 2015

Family and Paid In-Home Care Continues to Rise

by Levin & Perconti

As we have covered before, there has been a growing trend toward administering care to the elderly and infirmed in their homes rather than in target="_blank"nursing homes or long-term care facilities. The benefits seemingly outweigh the costs, and the pros significantly outweigh the cons, when it comes to using this type of care which has been colloquially termed “community-based care.” The advantages may even be somewhat intuitive, particularly with what we know about how some nursing homes provide such inadequate care, neglect their patients, and even abuse them, resulting in substantial injuries or even death, and requiring federal and/or state government involvement to investigate, sanction the offenders and evolve new rules governing facilities.

Pros and Cons of Community-Based Care

Community-based or in-home care allows for a more personalized touch when it comes to treating patients of physical and/or mental infirmity, and for taking care of the elderly as they increasingly require closer attention. This contrasts with a paradigm in which many nursing homes look to maximize profit by cutting back on overhead and staff, which can divert or take away attention necessary for patients. In some homes, for example, patients may only get a matter of minutes per day of attention from a nurse or nursing aide, and can often be overlooked or ignored when they need help, or can be left without enough food and water thus leading to malnourishment and dehydration. Additionally, when staffing levels are low, facility staff become overwhelmed with the amount of patients, especially when some are irritable or violent, and often resort to easier but less desirable means to deal with those issues, such as locking the patients in their rooms.

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February 23, 2015

Psychiatrist Settles Pleads Guilty and Settles Civil Claims

by Levin & Perconti


A few months ago, an Illinois psychiatrist was suspended indefinitely from practicing because of his alleged abuse of an antipsychotic drug called clozapine. Dr. Michael J. Reinstein prescribed clozapine to more than half of his patients at nursing homes as well as mental health facilities. Clozapine is used to keep patients sedated when they become irritable or violent – many of them suffer from dementia or other ailments, and antipsychotic drugs such as clozapine are used to hold them down. Such drugs can be considered an unacceptable form of chemical restraint that advocates have fought against in recent years in favor of more humane methods that avoid drug dependency.

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February 18, 2015

Medicaid Fraud Units Also Target Abuse and Neglect

by Levin & Perconti

As many know, nursing homes and long-term care facilities make up part of the wide-ranging community of medical care providers. And as with so many medical care providers like doctors and hospitals, nursing homes typically accept insurance plans as a way to pay for care, and often gladly accept federally-funded programs like Medicare and Medicaid to pay for care of the elderly and those unable to afford care on their own and who do not have private insurance.

These federal dollars add to the tremendous revenue stream that nursing homes enjoy, but as with any government or government-funded program, laws prescribe that such money can be accepted contingent with a promise to operate under specific prescribed rules and regulations. These include making sure that the home provides a certain quality of care, that the facility follows specific protocols with regard to both care and emergency situations, and that the facility remains clean and livable. The Centers for Medicare and Medicaid will perform reviews of facilities or refer investigations to appropriate state agencies. The agency also makes sure that federal money is spent appropriately, and not spent fraudulently on unnecessary treatment or equipment, or on fake expenditures so they can bill the government.

The Purpose of the Investigation Units

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February 16, 2015

Texas Lawmaker Moves Forward with Three Strikes Proposal

by Levin & Perconti

We previously covered the goal of a Taxes lawmaker to institute a three-strikes rule that would require a nursing home or long-term care facility to shut down after it has at least three health or safety violations as determined by the state’s Department of Aging and Disability Services. State Senator Charles Schwertner from Georgetown, Texas has worked to gain support for this initiative, and recently proposed a bill that, if gathering enough legislative support and the signature of new Governor Greg Abbott, would require the Department of Aging and Disability Services to revoke the license of any facility that has three strikes. These violations or “strikes” would have to fall on separate days, and would be considered over the course of a 24 month time period, thus all three strikes would have to fall in the span of two years.

Understanding the Law

This bill was prompted by findings at certain nursing homes that failed to operate up to standards. One home, for example, lost its license as well as federal funding (presumably through Medicare and/or Medicaid) because it had a whopping “70 deficiencies” which included lack of cleanliness, as well as poor food quality, among other things. A local affiliate also conducted an independent investigation in which it discovered how Texas did not do what it was supposed to in “thousands of cases,” and that the state failed “to report allegations of abuse, neglect and exploitation to law enforcement within 24 hours . . . in more than 1,500 instances.”

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February 13, 2015

Massive Financial Exploitation and Theft in Montana Case

by Levin & Perconti

Financial exploitation and theft of patients by caregivers amount to not only crimes of theft punishable under the law, but also amount to a disturbing moral and ethical financial exploitation in which nursing home staffers exploit their residents’ weaknesses and their positions of authority and supposed trust in order to benefit or enrich themselves. This can include simply stealing items like jewelry from residents’ rooms or taking cash or credit cards.

Sometimes a caregiver may be entrusted with making purchases on behalf of the patient and is thus entrusted with their checkbook or credit card, and can so easily steal money or use a credit card to buy items for themselves. Where a caregiver gains power of attorney for a patient, the caregiver effectively can control everything and take advantage of that power.
Where the victim is less likely to notice or pay attention to these things, and particularly in situations where the patient suffers mental infirmities like dementia or Alzheimer’s, this can be quite easy for a staffer. It is also important to realize that this does not just happen at nursing homes but can happen with in-home caregivers as well, thus it is broadly a serious issue in the area of elder care. Typically it takes the vigilance of a loved one to notice money missing or problems with credit card statements or missing jewelry or valuable for it to be reported and possibly investigated. And many accused of this horrible behavior will claim that they have a special relationship with the victim, and that the victim ultimately wanted to pass along property and money to them for whatever reason.

Recent Case of Elder Exploitation

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February 11, 2015

Illinois Supreme Court Considers Constitutionality of Nursing Home Tax

by Levin & Perconti

In the state of Illinois, under current state law (306 ILCS 5/5E-10), the government collects a fee of $1.50 per “each licensed nursing bed day” from nursing home providers on a quarterly basis. The money collected from this fee is placed into a Long-Term Care Provider Fund. It is important to note, however, that nursing homes are prohibited from passing this cost along to residents, meaning the fee must be paid out directly by the home without an increase of $1.50 per bed per fiscal quarter for each resident’s bill. A nursing home sued the state, arguing that the fee is unconstitutional.

A state Circuit Court invalidated the fee statute on the grounds that it violates the Uniformity Clause of the Illinois Constitution. Under Article IX, Section 2 of the state Constitution, non-property taxes or fees must be “reasonable” and applied to the relevant subjects “uniformly.” The U.S. Constitution and other state constitutions have similar such uniformity provisions as pertains to those governments’ respective taxing powers. The State in this case obviously argued the opposite, that the fee is reasonable and thus constitutional under the Uniformity Clause.

The IL Supreme Court Review

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February 9, 2015

Illinois Part of the Community-Based Care Trend

by Levin & Perconti

In the nursing home health care industry, there has been a growing trend, or shift, from institutional care to community-based care. This entails keeping patients out of nursing homes and long-term care facilities, and in their homes where they receive care perhaps from live-in aides, or aides that visit on a certain schedule. Care supplied by family members can also be a part of this community-based paradigm. Researchers have found that patients become more and more dependent on caregivers when they are in an institution (a nursing home or long-term care facility) as opposed to when they are cared for and receive treatment in a more community-based system, which may tend to provide a more personal touch. This also tends to lead to lower costs and more effective care, which is much more efficient and a win-win situation.

Programs to Reform Long-Term Care

As many know, federal dollars go toward healthcare for the indigent or elderly through programs like Medicare and Medicaid, which are administered by the federal government through the U.S. Department of Health and Human Services and the Centers for Medicare and Medicaid, and administered and overseen jointly with the states. The federal government runs a program called the Balancing Incentive Program, which aims to work with states to reform and improve long-term care by providing resources, helping consumers with health care planning, improving oversight, and lowering costs while raising efficiencies. There are certain eligibility requirements for states depending on how much of Medicaid funding they spend on non-institutional programs and services, and how they meet certain other program requirements.

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February 6, 2015

Controversy of End-of-Life Directives by Dementia Patients

by Levin & Perconti

We have posted about numerous cases about the elderly and dementia and Alzheimer’s. Alzheimer’s affects millions across the country, and many reside in nursing homes and long-term, care facilities in order to ensure they are cared for and have a good quality of life even as they no longer have all of their mental faculties. We have also previously discussed how many nursing home patients, much like hospital or other patients in general, have certain preferences about their treatment in the event of certain circumstances.

This may include a wish to not be resuscitated in certain circumstances. The elderly or infirmed may decide that they wish not to live if certain circumstances will make it too much to bear. In one particular case profiled by the New York Times, an elderly Massachusetts man, who has a particularly specific “advance directive” that instructs medical providers, first responders or paramedics of what to do in certain scenarios.

For example, if he is terminally ill, he does not want to be put on a ventilator, be given a feeding tube, or be administered cardiopulmonary (CPR) resuscitation. In the event he is found to have some dementia or Alzheimer’s that affects his ability to feed himself, he does not want “ordinary means of nutrition and hydration,” essentially meaning that he does not want to be provided nutrition through liquids or spoon-feeding. This is analogously another means of not being kept alive, much similar in a sense to a “do not resuscitate” instruction or order, albeit it leads to a slower demise. As the article indicates, about 30% of the elderly above age 85 suffer from some type of dementia, and this disease continues to affect many Americans in general.

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February 4, 2015

California Woman Dies after Neglectful In-Home Care by Daughter

by Levin & Perconti

There has been a growing movement in favor of in-home or community-based care, in which a patient avoids the bureaucracy and potential neglect that can come with a nursing home stay, and instead receives more personalized and human care in the comfort of their own home. This can often be with the direct care of indirect support from loved ones.

Real World Examples

There was a recent case profiled in The Atlantic that combines the idea of care from one’s family member along with neglect and exploitation that has resulted in a long prison sentence. In California, an 85 year old woman had resided in a nursing home because she could not care for herself even on the most basic level. Eventually her daughter, who was homeless and lived in her car, convinced her to move into an apartment, which the daughter paid for by tapping into her mother’s social security money. The daughter moved in and assumed responsibility for her mother’s care.

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February 2, 2015

Who is Keeping Track of Your Loved One?

by Levin & Perconti

Many across the country, but especially in the northeast and in Western New York, recall the pre-Thanksgiving deluge of snow that completely buried the greater Buffalo area, and left businesses closed and residents shut in their homes. The snow fall was so deep and the roads so buried and treacherous that it was nearly impossible to get around. Some facilities even had to be evacuated. Even the Buffalo Bills had to escape to Detroit, Michigan, to play its game that weekend that was supposed to be played in Buffalo.

Amidst the madness, a nursing home in the Buffalo area was forced to evacuate its more than 170 residents as well as staff personnel because the snowfall was so heavy that local building and fire officials thought it might actually collapse the building’s roof, which is what already had happened to an adjacent building. This of course could lead to injuries and burying the residents in mounds of snow, so it was a seemingly prudent and responsible decision by the facility’s management to protect its residents.

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January 30, 2015

Nursing Home Owner Accused of Rape

by Levin & Perconti

A case in the state of Washington has caught attention for the heinous violation that a nursing home owner committed against one of his facility’s patients. We have constantly seen case after case of physical and verbal elder abuse, as well as negligence in treatment and attention, but cases of sexual assault and abuse are not always at the forefront of these nursing home-related stories. Of the various types of abuse and neglect that patients and residents can suffer, what occurred at the AA Adult Family Home in Auburn, Washington, is one of the most heinous, vile and unforgivable actions and betrayals of trust.

As was reported last month, hidden camera footage documented the 67-year old owner of the AA Adult Family Nursing Home raping an 83-year old female patient in her room. As one might expect, these accusations go beyond any type of civil or administrative remedy that the state could take, and the accused nursing home owner was taken into custody by police and charged with second degree rape. In addition, the other residents (there were about only a dozen total patients in the entire home) were moved to hospitals until they could be permanently settled elsewhere to continue receiving care. Those residents, who mostly suffered from some dementia, also underwent exams as a precaution to determine if they also had been victims of sexual assaults. As was also reported, the victim in this horrific attack suffered from dementia. While any nursing home resident can be subject to abuse and neglect by facility staffers, those that suffer from mental inhibiting ailments like Alzheimer’s disease or dementia are particularly vulnerable because it may be difficult for them to understand what is happening to them, and they have trouble articulating and reporting the abuse.

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