Articles Posted in National Nursing Homes

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In recent news, the U.S. Department of Justice (DOJ) announced that it would join a false claims lawsuit against HCR ManorCare, which is one of the biggest nursing home chain operators in the country. The company has been accused by a whistleblower of consistently overbilling Medicare, including for reimbursements for resident rehabilitations that were too difficult and thus unnecessary for frail residents. This was also to justify higher reimbursement claims to increase revenue, since the level of rehabilitation often hit the highest reimbursement rate level under Medicare.

As the AP reported based on the lawsuit, one example of the alleged fraud occurred when a man who was prescribed hospice care was instead put through over three months of therapy by the nursing home just to qualify for Medicare reimbursements. It is also alleged that nursing homes kept residents for longer than they needed to be there to continue billing the government for care services. The initial lawsuit was filed by an occupational therapist at one of the facilities who saw the alleged fraudulent activity, and there were other suits, all of which have been consolidated into one lawsuit now that DOJ has decided to get involved after years of investigating. DOJ’s involvement may signal its confidence in the strength of the suit after having looked into the matter for a substantial period of time. ManorCare has denied that the billing was fraudulent.

False Claims Act – Rooting Out Fraud

The False Claims Act is a vital piece of law that allows the federal government to claw back money, plus additional penalties and damages, from private entities or persons that reap financial benefits as a result of committing fraud against the United States. This is a very common scenario in the context of medical providers and Medicare and Medicaid claims, as false billing or overbilling Medicare and Medicaid reimbursements for treatments and visits that did not occur or were unnecessary yields unearned profits and thus defraud the government and taxpayers. Nursing homes unfortunately can be offenders, and facilities and individuals can face civil and criminal liability and penalties for such actions. Nursing homes often rely on substantial revenue streams from these government programs, but some unfortunately take advantage of this. Such actions defraud the government and jeopardize the health, safety and well-being of patients who are given medications or treatments that they do not need simply to run up the reimbursement bill.
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In a previous blog post, we discussed a 2011 jury verdict that awarded approximately $92 million to the family of a patient who suffered abuse during a 3 week term at a West Virginia nursing home called Heartland Nursing Home, which is owned by a corporation called Manor Care. A relatively small amount of the jury award accounted for ordinary negligence in the nursing home’s actual poor medical care and negligence in failing to adequately feed and hydrate the patient. A whopping $80 million of that award accounted for punitive damages. An obstacle to enforcement of the jury award was found in West Virginia’s professional liability laws that limit non-economic damages (i.e. punitive damages, as opposed to more easily quantifiable medical costs), to $500,000, which was obviously well below the award given by the jury. When we last discussed this case, it had crept its way to the state Supreme Court to determine the issue of whether or not the verdict was appropriate under the half million dollar cap for professional liability. To date that question has not yet been answered while other in-state nursing home negligence claims lay dormant awaiting a ruling before proceeding to their own jury awards.
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The line between the type of care provided at a nursing home and the care provided at a hospital is sometimes not easy to distinguish. The traditional long-term care unit is a “skilled nursing” facility, meaning that more medical care is provided than at mere assisted living facility but less skilled care than at an actual hospital. As a result, nursing home abuse or neglect lawsuits can involve general caregiving lapses (like allowing a senior to fall) or actual medical errors (like not providing certain treatment in a timely fashion).

Importantly, even lawsuits against hospitals can take both forms, either problems with the medical treatment itself or with basic caregiving and monitoring of patients. For example, our team of neglect lawyers recently settled a case on behalf of a client against Rush Medical Center following failure to monitor a patient after a CT scan was performed

Chicago Malpractice Lawsuit

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This week–May 12th through May 18th–represents the official “National Nursing Home Week.” With many participants, including the American Health Care Association (AHCA), the event is a yearly reminder of the needs of long-term care residents and the terrific work that so many valuable caregivers perform day in and day out. It is easy for those of us working on matters related to nursing home neglect and mistreatment to appear unconcerned with the great work that facilities are able to provide. But on the contrary, because we are so familiar with the many instances of poor care, we are better able to understand the value and service of great care, when it exists.

The theme of this year’s week-long event, according to the AHCA site on the event, is” “Team Care.” In summarizing the event, the site explains that the week is for the residents and dedicated staff who “pitch in for optimal outcomes.” This is a timely theme, as with the complex needs of many seniors, proper communication and shared commitments to positive outcomes for senior residents requires clear coordination between all members of the caregivers process. When too many nursing home employees are forced to go it alone or do not receive the support they need for owners and operators, harm results.

National Nursing Home Week Events

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Long-term living locations catered to seniors are often referred to as “skilled nursing facilities” (nursing homes) and “assisted living facilities.” The basic distinction between these types of homes is the level of care provided to residents. Assisted living facilities provide only general aid, perhaps with meals, cleaning, laundry, and other day to day tasks. Conversely, skilled nursing facilities can provide actual medical care. Seniors with more serious health care issues usually need the support that is provided at a traditional nursing home instead of an assisted living facility.

However, the fact that skilled nursing facilities are able to provide some medical care also means that they may commit medical malpractice. One of the most common ways this happens is when nurses and aides make errors with regard to medication. Obviously many seniors in long-term care facilities rely on the various medications to help control different medical issues. When medication is not provided properly, serious harm can result.

A recent Legal Examiner story touched on that very issue. The article points to a study that we have referenced before from the Journal of the American Medical Informatics Association. That research project found a significant number of medication problem in nursing homes. As noted, the most eye-popping statistics from the research effort is that observers identified that about 21.2% of all dispensals of medication involved some error.

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Most legal issues related to nursing home abuse and neglect are state cases. In general, injury matters are rooted in basic negligence that is heard in state court, unless there are unique issues involved or parties from different states. One of those unique issues which has actually led to federal court decisions in recent years relates to arbitration.

We have frequently discussed how binding arbitration agreements are often snuck into nursing home admission forms. These agreements may require a family to use a separate arbitration process to resolve disputes–including those for neglect and abuse–instead of filing a lawsuit and being heard in the traditional manner. The procedural rules are different in arbitration, and it is a process that is generally far more favorable for the nursing home company–that is why they like it.

Over the years, there have been various legal cases challenging the validity of these mandatory arbitration agreements. Those cases have made various arguments as to why specific agreements are invalid as well as why all such agreements should not hold. Some of those suits were made in state courts, while a few have been heard by federal judges.

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Earlier this week, as reported by BND, a Cook County jury awarded an elderly woman $843,000 for injuries she sustained in a fall at her Chicago area nursing home. Falls are the most prevalent injury that can be sustained in a nursing home according the Center for Disease Control ( CDC ), accounting for nearly a million falls yearly. While, some of the injuries sustained in falls are an unavoidable consequence of the victim’s physical characteristics and limitations, the CDC estimates that 16% to 27% of the falls are a result of environmental hazards.

Injury awards for falls in nursing homes are not isolated incidents and can cause serious and debilitating pain for the victim for the conceivable future. That is why Illinois and most other states have enacted many laws, which facilitate how nursing homes and other like facilities handle and prevent such harms. In the state of Illinois, there is the broad Nursing Home Care Act that outlines what is required of homes and other similar services. In the act, there are requirements for the lifting of a resident, fixtures that should be available to prevent falls, and policies in place in the event of a fall or injury. When there is a violation or action that falls below the standard of care that has been set by the Nursing Home Care Act, which leads to an injury, that is when a resident should know what do to do and understand their rights.

It is critical for the both resident and family members to first seek to enforce their rights by reporting the injury the Illinois Department of Health, which is the primary agency for enforcement of the Nursing Home Care Act. If a violation is found, penalties can be levied against the nursing home, which range from fines all the way to suspension of the home’s license.

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Sometimes you have to see elder abuse with your own eyes before appreciating the many ways that seniors are mistreated in our community each and every day. Sadly, there are virtually no limits to the manner in which others exploit vulnerable elders (often their own relatives) for their own personal gain. Living out one’s golden years in comfort should not be a privilege only for a certain few. However, for far too many, their last years are filled with pain, sadness, and neglect.

Some seniors are even forced to spend their time working bizarrely for other’s gain. For example, a community was shocked recently when a video made its way onto YouTube suggesting that a man was forcing his elderly mother to panhandle at a mall for hours on end day after day.

Elder Abuse Video Spreads

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One of Chicago’s dubious distinctions–especially in recent years–is the high prevalence of murders in the city. We frequently top the list for homicides each year, and, sadly, many of those crimes go unsolved. This statistic has made headlines in recent months in the context of gun violence. Many victims are killed with handguns, often as a result of gang activity.

But it is a mistake to assume all of these crimes are related to young men involved in gang activity. In fact, a Chicago Tribune story earlier this month reminds us that some victims are on the exact opposite end of the spectrum–seniors or adults with disabilities who are killed, often as a result of abuse.

Unidentified Victim

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President Obama recently signed a bill into law known as the SMART Act–Strengthening Medicare and Repaying Taxpayers Act. The passage of the measure was a bipartisan effort with Republicans and Democrats in both the Senate and House supporting the bill. That sort of joint effort to pass common sense legislation is rare in today’s toxic political environment.

What It Does

In general, the SMART Act is intended to make some changes to rules so that program participants receive the help they need in a quick fashion and to guarantee that taxpayers receive reimbursements when necessary for the cost of that care. These goals are met by streamlining the “Medicare Secondary Payer” system (MSP). The MSP is the system that seeks reimbursement to the Centers for Medicare and Medicaid Services (CMS) when those medical payments are the responsibility of a third party.