September 12, 2012

Medicaid Home Care Cuts Halted by Court

by Levin & Perconti

Legal challenge for those receiving “at home” care via Medicaid are growing across the country. Medicaid is a joint federal and state program that provides long-term care to the poor and disabled. This is distinguished from Medicare which provides general medical insurance for seniors. When prolonged nursing home visits or caregiving duties at home are needed it is Medicaid, not Medicare, that residents turn to when they cannot afford the services on their own.

Yet, it is no secret that budgets--both state and federal--are quite tight. Medicaid outlays are one of the largest single lines in those budgets, and so long-term financial plans almost always include mention of cuts to these services. Those who rely on Medicaid obviously have legitimate concerns about what this might mean in their specific case. At the end of the day, changes can be mandated both by state officials and the federal government. Each state may take a different track, and so it is important for local residents--when hearing news about proposed Medicaid changes--to understand if the proposal is coming from Illinois, the federal government, or another state altogether.

Legal Challenges
While both state and federal officials can alter program details, there are limits on what can be done. Specifically, the federal government usually provides funds to each state under the assumption that rules it creates will be followed by those states. The program rules provide flexibility to the states, but they also act as limits ensuring the goals outlined by federal officials is still carried out across the country. When a state makes a change in the programs that might violate the rules set forth by federal officials, then a lawsuit might be appropriate.

That appears to be the case in New York.

According to a New York Times story last week, a preliminary junction has been issued by a judge on threatened cutbacks to that state’s Medicaid coverage. The main issue was whether the state violated federal law when cutting back on personal care for certain community members on Medicaid. Certain residents who received two at-home care workers (on 12 hours shifts) would instead only receive one aide (who lived with the disabled resident).

The preliminary injunction officially stops the cut-back, but it does not officials decide the matter. In issuing the preliminary injunction, the court simply determined that the plaintiffs had a “substantial likelihood” of succeeding in their case--it didn’t actually decide the case.

In issuing the ruling, the judge felt that the evidence was strong against illegal termination of services. Apparently, proper notice was not provided to the residents affected and there were confusing interpretations of Medicaid rules which spurred the cuts to begin with.

The judge noted that financial pressures were likely the cause of the state agency’s decision to cut back on personal services. Yet, the judge’s ruling is a reminder that major changes cannot contravene the law. Of course, the law can be changed by relevant policymakers. But, until that occurs, state officials have to abide by the rules on the books and provide the care required and mandated.

See Our Related Blog Posts:

Family Tries to Challenge Constitutionality of California Malpractice Compensation Law

Medical Lobby Set to Make More Demands on Congress

July 8, 2011

Illinois Nursing Home to Close Due to Medicaid Issues

by Levin & Perconti

On October 1, 2011, the Hancock County Nursing Home is shutting its doors, according to the Herald-Whig. Due to Medicaid’s failure to timely reimburse the nursing home for the residents using the program, the facility has no choice but to discontinue operation. Although the facility has received some payments from Medicaid, it is well below the costs of operation. In addition to the lack of financing, the total number of residents in the facility has substantially decreased in recent years. The 57 bed nursing home currently houses only 34 residents.

The nursing facility, which was opened in 1970, explored many options in order to prevent closure. An attempt was made to sell the facility to another operator, but no bids were made. The closing of this facility continues a pattern that has proved to be frequently common in Illinois. In the past several years, over 105 Illinois nursing homes have shut down due to various reasons.

Fortunately, the nursing home is overseeing plans to make sure that all of its residents, as well as, employees are taken care of. The facility has begun individual meetings with residents and their family members to determine which facility they would prefer to transfer to. Additionally, the nursing home plans to help its employees locate comparable jobs after October 1st.

Our Illinois nursing home lawyers recently read about another county-run facility that will soon be privatized due to high operational costs. The impact of the economy has caused some undesirable consequences and unfortunately our elderly nursing home residents and their families have to suffer by the upheaval of their residency. We hope that with these changes, whether it is a change in ownership or the transfer of residents to new facilities, resident care and safety will not be compromised. It is crucial that facilities continue to operate within the standard of care in order to ensure that no Illinois nursing home resident will fall victim to abuse or neglect.

July 13, 2010

New Penalties Proposed for Negligent Nursing Homes

by Levin & Perconti

The Center for Medicaid and Medicare Services (CMS) proposed new regulations yesterday for civil money penalties for nursing homes that violate CMS participation rules. Much of the money used to run nursing homes and provide care to elderly citizens is provided by CMS.

To ensure that the funds are spent in a fair manner and that adequate care is provided, CMS has guidelines that must be followed before a nursing home will be reimbursed by CMS for the cost of provided care to each resident. Also, CMS has the power to impose penalties on nursing homes that violate the CMS requirements.

The new regulations proposed yesterday were mandated by the landmark healthcare reform law passed last year. Our Chicago nursing home lawyers at Levin & Perconti support any new law that holds failing nursing homes accountable for elder abuse and negligent care that is too often provided to senior residents. Our clients have continually shared stories of substandard care at these facilities, often leading to deadly results. Threatening the money streams to the nursing home facilities is sometimes the only way to ensure that nursing home administrators finally ensure that their employees are properly trained, the facility is secure, and all nursing home laws are followed.

A few of the new regulations proposed yesterday include:

- Allowing a portion of a civil money penalty collected for Medicare violations to be used for the protection and benefit of nursing home residents. Currently, the money is simply collected by the U.S. Treasury and pooled in the general fund.

- After the conducting an informal dispute resolution (IDR), allowing CMS to collect the penalty money, placing the funds in an escrow account until any appeal process is completed. This way negligent nursing homes are not able to delay paying any penalties while they slow down the process with continuing appeals measures.

- Require that all IDR actions not be delayed and occur within 90 days of notice of the CMS imposed penalty.

Click here to read this summary from The Hill with more details on the proposed changes. We will be sure to keep this blog updated on the developments as these proposals become the actual law by which nursing homes must abide.

July 8, 2010

New Appointment to Lead Nursing Home Reform Efforts

by Levin & Perconti

Yesterday, President Obama appointed Dr. Donald Berwick as the new Administrator of the Centers for Medicare and Medicaid Services (CMS). CMS is the federal agency that regulates nursing homes and all other facilities that receive Medicare and Medicaid funds.

The National Consumer Voice for Quality Long-Term Care, one of the nation’s foremost nursing home reform organizations, issued a statement on President Obama’s choice, explaining how they believe Dr. Berwick will handle nursing home law issues.

Many have criticized the President for making a “recess appointment,” essentially meaning that Dr. Berwick will not require Senate approval be officially be given the job. However, the Consumer Voice notes that the CMS position had not been permanently filled since 2006, and that immediate action was needed to ensure that America’s health and long-term care systems were being properly administered.

Specifically, Dr. Berwick will spearhead the process to implement the provisions in the Patient Protection and Affordable Care Act. Those provisions include expanding access to home and community based services and improving the quality and safety in long-term care facilities. This health care reform law passed in March also requires CMS to provide substantial oversight in nursing home reporting requirements pertaining to ownership, operations, financing, staffing, and quality. Also, nursing homes are now required to perform background checks on all care workers and clearly report all cases of neglect, abuse, and exploitation in nursing homes.

The Consumer Voice further urged Dr. Berwick to take action on other areas of concerns to nursing home residents including the severe understaffing in many homes, quality of care problems, and lax enforcement of state Nursing Home Reform Law.

Our Chicago nursing home attorneys at Levin & Perconti hope that Dr. Berwick makes a smooth transition and advocates for the rights of all those receiving long-term medical care. Any step toward limiting elder abuse and nursing home negligence is a step in the right direction.

January 17, 2010

Johnson & Johnson Receives Kickbacks for Nursing Home Prescriptions

by Levin & Perconti

A recently filed Justice Department lawsuit alleges that Johnson & Johnson paid tens of million of dollars in kickbacks to boost sales of its drugs in nursing homes. One of these drugs included an antipsychotic that can be used as a chemical restraint. The payments were disguised as grants or educational funding. They were funneled through Omnicare, which is a pharmacy company that dispenses drugs in nursing homes. They used their influence with doctors to have prescriptions switched to name Johnson & Johnson. This puts profits ahead of medical care and can distort the judgment of health care professionals. This is just another case in a series of nursing home lawsuits that allege companies have used illegal inducements to skew medical decisions and promote their products. The biggest problem is that Johnson & Johnson allegedly caused false or fraudulent claims to be filed with Medicaid. The patients at issue include those suffering from Alzheimer’s and other forms of dementia. This recent case greatly effects how pharmaceuticals are dispensed in nursing homes. To learn more about the nursing home kickbacks, please check out the link.

January 11, 2010

Doctor Chastised Over Nursing Home Negligence

by Levin & Perconti

A physician has been reprimanded by the state medical registration board for elderly negligence. The doctor mishandled the care of an 88-year-old man when he changed his medications. He also failed to inform the victim’s cardiologist and gave the patient “unrealistic instructions” for handling his own medicines. In 2008 the doctor agreed to pay $150,000 to settle allegations that he submitted fraudulent claims to the Medicare and Medicaid programs for office and nursing home errors. He has become entangled in the federal probe because of the nursing home errors by the billing service. To read more about the doctor’s fraudulent claims, please click the link.

May 25, 2009

Nursing Home Loses Medicare and Medicaid Funds

by Levin & Perconti

More than two dozen residents of a nursing home that is losing its Medicare and Medicaid funding are being forced to move. The nursing home is having its certification pulled because of deficiencies found by state health inspectors. The deficiencies centered on medical and nursing home neglect. Inspectors found one resident with 17 pressure ulcers who was not receiving appropriate treatment that was ordered by a physician. Other examples of elderly neglect include some residents who were not being turned or cleaned and in some instances were not fed. Many residents had experienced severe weight loss. Other residents had not received assistance with meals to prevent severe weight loss. Many staff members were not following doctor’s orders to care for medical problems such as not monitoring blood glucose for diabetics. The Centers for Medicare and Medicaid Services allow three revisits to a nursing home to determine if they will terminate funding. To read more about the nursing home abuse, please click the link.

November 25, 2008

Former Resident Sues Now-Closed Nursing Home

by Levin & Perconti

A man claims he was wrongfully discharged from a now-closed Iowa nursing home and dropped off in an unfurnished apartment with only $30 and four days worth of medications. He is now suing the nursing company alleging elderly negligence and recklessness. The man was in the hospital with congestive heart failure nine days after the employee from the nursing home left him in an Illinois apartment. He required the installation of a cardiac defibrillator. The man lived at the nursing home from November 2006 until he was discharged in March 2007. He accuses the home of acting inappropriately when he complained about the care he was receiving, breach of contract and dependent adult abuse. He states that the home failed to properly administer medication, had insufficient staff and inflicted emotional distress as other residents were harmed in his presence. This is the second elderly abuse lawsuit against Petersen Health Care since it closed in fall 2007. The nursing home closed at the end of September 2007 after the federal government pulled its Medicare and Medicaid funding and the state moved to pull the center’s license. To read the full story, click here.

June 16, 2008

Illinois Nursing Home May Lose Public Aid After State Inspection Finds Neglect

by Levin & Perconti

A recent state inspection of Alden Town Manor Rehabilitation and Healthcare Center in Cicero, Illinois revealed one resident who broke a wrist after a preventable fall, another with a pressure sore, and, finally, three more who had experienced unhealthy drops in weight. In December of 2007, the facility had been found to be in non-compliance with the laws that govern Medicare and Medicaid services, having six months to comply or have its public aid terminated. The six-month term is coming to an end and two weeks from now public aid services will no longer be available if the facility fails to become compliant. While termination of public aid is not necessarily a death knell for nursing homes, it is very detrimental as, on average, 90 percent of money for residents is provided by Medicaid. Facilities whose aid has been terminated have to turn to private funding, and existing solely on that is practically impossible. The original inspection came after complaints about two residents who had bed sores, a result of not being moved for a long period of time. This inspection led the Illinois Department of Public Health to give the nursing home a level 3 citation, on a scale of 1 to 4, 4 denoting such severity that a death has occurred or a resident is in danger of dying because of substandard care. In the most recent inspection, the resident who broke her wrist was known by the staff to be at risk for falls at the nursing home because of her behavioral history of wandering around the nursing home hallways and trying to move without the use of her wheelchair. It is not yet known whether the families of the victims will seek to file nursing home abuse and neglect lawsuits against Alden.

Read more here.

April 2, 2008

Nursing Home Residents File Lawsuit for At-Home Care

by Levin & Perconti

Residents forced by state policy to live in a nursing home filed a lawsuit against the state for at-home care. The state policy essentially mandates that Medicaid beneficiaries live in a nursing home instead of providing them assistance while allowing these residents to live in, for example, subsidized housing. The policy has created immense inefficiency because residents receive little spending money to the extent that many cannot afford transportation, phones, or their own food.

The state does provide a limited number of at-home programs that do save money. However, in many cases, Medicaid spends $4,000 per month one a single patient for nursing home care. The same funds could be used to assist those living at home, thereby saving thousands of dollars for Medicaid and providing a higher level of care. Fears over nursing home abuse and neglect have even prevented many individuals that ought to obtain assistance from seeking Medicaid because they will likely be required to live in a nursing home.

For the full article, click here: