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A nursing home supervisor with a pattern of sexual misconduct was able to keep his job for 19 months after first sexually assaulting and later raping a nurse who directly reported to him at Cherry Creek Nursing Center (CNCC) in Aurora, Colorado. The man, Benjamin Offei, was ultimately sentenced to a year in prison and 10 years probation, but not before spending another 19 months in his job at CNCC and allowing the nurse to be falsely accused of narcotics theft, among other dubious allegations.

Inconsistently Enforced Disciplinary Action Causes Victim to Lose Job

In January 2015, the victim was subjected to sexual assault from Mr. Offei and two days later was raped in his office. After reporting the attack to facility administrators who hesitantly called police, she went to the hospital and was given a rape kit. While in the hospital, the administrators told police that she had stolen narcotics from the facility and after being searched, was found to not have any drugs in her possession. CNCC then suspended the nurse the next day. After her suspension period, the nurse returned to her job at CNCC and was later fired for 4 disciplinary write ups, which, in a lawsuit filed by the nurse, were alleged to be common minimal infractions that frequently occur among CNCC’s staff. One of the violations was for taking a call from her sick daughter while on the clock. The lawsuit, filed earlier this month against CNCC and its owner, Nexion Health, also alleges that 5 other women who worked at CNCC had been sexually assaulted by the same man and were told by human resources that complaints had to be put in writing. The women all refused to do so out of fear of losing their jobs. In her lawsuit, the nurse states that the facility put women in harm’s way by allowing a man with tendencies such as Mr. Offei’s to continue working and then by waging a campaign against victims to ruin their credibility and reputation.

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Salem Nursing & Rehab in Augusta, Georgia, also known as Amara Health Care & Rehab, settled a wrongful death lawsuit on the eve before the case was set to go to trial. The widow of a man who suffered and ultimately died from gangrene-infected pressure sores was pursuing action against Amara after her husband was sent to the facility to receive rehab services as a result of a stroke in 2011. In less than than 1.5 years, Mr. Patrick Manning, the decedent, developed pressure sores and was found to be dehydrated and malnourished. His widow, Mrs. Norma Manning, alleged that poor care caused the rapid decline in her husband’s health that ultimately led to his death.

Amara Health Care Had History of Violations & Lawsuits

Unsurprisingly, Salem Nursing & Rehab (aka Amara Health Care) had consistently received a less than average rating through Centers for Medicare & Medicaid Services as a result of numerous standards violations and had been named in several lawsuits in the last 10 years. A recent search on Nursing Home Compare shows that the facility received 1 star (the lowest rating) at its latest health inspection and has an overall star rating of 2 (below average). Just this past May the facility declared bankruptcy and was sold off to University Health Care System in Augusta.

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Amendments to the American Health Care Act, the GOP bill to repeal and replace Obamacare, are set to be voted on by the House this Thursday. Among many of the proposed changes are several related to reducing federal funding towards Medicaid, the federally-backed but state-run public aid program that provides health care to millions of low-income Americans. The GOP argues that cutting funding to Medicaid is necessary in order to reduce deficits in other areas of our national budget.

About Medicaid & Long Term Care

Medicaid reductions are a dangerous prospect for many of America’s elderly. The National Consumer Voice for Quality Long Term Care estimates that 70% of people aged 65+ will need some form of long term care, whether within their own homes or within a nursing home. As of today, Medicaid spends $158 billion on long term care support services, including $55 billion towards nursing home residency and associated services. Medicaid is the largest payer of long term care, responsible for the payment of more than 50% of all nursing home costs. National Consumer Voice also says that yearly fees for a shared room in a nursing home cost nearly $83,000 in 2016. Considering the expense of nursing homes and other long term care support services, reducing funding for these programs at the expense of the disadvantaged elderly seems to be one of the cruelest ways to reduce our budget deficit.

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Long Term Community Care Coalition (LTCCC) just released its list of over 6,000 U.S. nursing homes with what they’ve termed ‘chronic deficiencies.’ LTCCC considers chronic deficiencies any violation of the same Centers for Medicare & Medicaid Services (CMS) regulatory standard 3 or more times within 3 years. LTCCC used Centers for Medicare & Medicaid Services’ own Nursing Home Compare database to analyze the infractions.

About LTCCC & Rankings

LTCCC is a non-profit advocacy group that describes itself as ‘dedicated to improving quality of care, quality of life and dignity for elderly and disabled people in nursing homes, assisted living and other residential settings.’ Along with the list of facilities with chronic health deficiencies, LTCCC has also included a spreadsheet of CMS’s star ratings for all the nursing homes found to be deficient. CMS uses a 5 star rating system to give those considering nursing homes an easy way to compare the overall quality of one facility vs. another and uses 5 as the highest indicator of quality and 1 as the lowest.

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An investigation by the Government Accountability Office (GAO) has revealed that for profit nursing homes have the highest profit margins, but the lowest staffing ratios compared to non profit and government run facilities. Nursing homes that are a part of a chain or network of nursing homes are the biggest offenders, with 19% higher profit margins than their counterparts.

Data Collection Made Difficult by Less than Forthcoming Nursing Homes

The largest obstacle that investigators faced was the reliability of data made available to them by the Centers for Medicare & Medicaid Services (CMS). GAO is responsible for ensuring that government agencies are properly functioning within the parameters of the responsibilities and duties entrusted to them. While CMS regulates all Medicare and Medicaid funding, the data given to them by nursing homes is believed to be somewhat unreliable, as the facilities are asked to self-report all data on expenditures. The motivation is there for nursing home operators to hide profits any way they can so as not to tip off the government that they are getting wealthy from Medicare reimbursements.  Therefore, the data passed on by CMS to the Government Accountability Office cannot be considered a reliable source. Knowing this makes the information reported to CMS even more frightening than it would be if taken at face value.

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In November 2016, The Centers for Medicare & Medicaid Services (CMS) enacted their revised nursing home regulations. The standards dictate which nursing homes are eligible to receive Medicare & Medicaid funding. Failure to follow the regulations set forth by CMS could ultimately result in termination of federal funding. It is vital that residents and their loved ones are informed of the revisions in order to keep nursing homes accountable for their actions and to protect themselves. Below are some of the updates that have been made to regulations surrounding transferring and discharging a resident against their wishes, known formally as involuntary transfer and discharge.

Revisions Not Drastic but A Definite Improvement

According to CMS, the new requirements state 6 specific reasons that justify an involuntary transfer or discharge:

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A lawsuit has been filed against Emerald South Nursing and Rehabilitation Center in Buffalo after an 82 year old woman was beaten to death by another resident. Late last August, Ruth Murray was suffering from dementia, mistakenly entered a fellow resident’s room in the same unit and was fatally beaten. The man thought a stranger had broken into his home and violently attacked Ms. Murray, leaving her with a broken neck, a collapsed lung, and other broken bones. Ruth Murray died after 3 days in the hospital.

Supervision a Basic Requirement for All Nursing Home Residents

Residents of nursing homes have chosen a facility to aid in their care when they or their loved ones are unable to provide that same level of care at home. It should go without saying that all nursing home residents should be adequately supervised based on their overall physical and mental health. It seems inconceivable that any resident, much less one living in a dementia unit, could wander into another patient’s room and have it go unnoticed. Unfortunately incidents such as these happen frequently. The reasons are typically poor training of staff and too many patients for too few staff members. However, the reasons for negligence never can justify the tragedy that has taken place.

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Late last year, a Mississippi judge voted to block a ban on arbitration clauses in nursing home residency agreements. The ban, introduced by the Centers for Medicare & Medicaid Services (CMS), was intended to preserve the right to a jury trial and to encourage better care and oversight by nursing home staff. Despite the ban, victims and loved ones of those who have faced abuse, neglect, and even death are clinging to the very mention of CMS’ rule intended to ban binding arbitration clauses in hopes that it will be reinstated and breathe life into their legal battle against nursing homes.


A Daughter’s Fight for Justice

In Minneapolis, the daughter of an 89 year old assisted living facility resident who died after hernia complications in 2014 is suing the nursing home, Lighthouse of Columbia Heights, for failing to respond to obvious signs of a hernia in her father. Doctors had ordered staff to notify them if Mr. Seeger, the decedent, showed any signs of a hernia, given that he had experienced them in the past. After the staff had ignored obvious symptoms, his daughter went to visit her father, only to discover him vomiting and screaming about pain in his groin area. She called 911 and had her father transported to a hospital where he died shortly after admission. Seeger’s daughter faced a hurdle when attempting to sue Lighthouse of Columbia Heights: the family had waived their right to a jury trial by signing a 36 page residency agreement in which a binding arbitration clause was embedded. The daughter said that she asked for time to look over the agreement with an attorney but that the facility pressured her into thinking the apartment would be gone by the time she had done so. The attorney hired by the family is arguing that they signed the contract under duress, which would make the contract legally void. Lighthouse of Columbia Heights is fighting back by saying that they never pressured the family. While contracts can be tough to void, the lawsuit against the facility is being buoyed by the recent ban on binding arbitration, even with it currently stalled by the courts. In addition to the Seeger Family, many others who have debated seeking legal assistance despite signing an arbitration agreement are being filled with hope that justice might be on the horizon.

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The family of a woman with a history of falling and rheumatoid arthritis is suing ManorCare Health Services at Mercy Fitzgerald of Yeadon after the victim died following a fall at their facility. The woman, Nellie Louise Howard, had fallen multiple times as a resident of the facility, but it was a fall she suffered after 20 months in the facility that ultimately took her life. Ms. Howard was admitted in May 2014 with documented dementia and rheumatoid arthritis, as well as a track record of falls. Because of her high fall risk and her other mobility issues, she was required to have 24/7 care in order to prevent accidents. On February 25, 2016, Ms. Howard fell and was treated in the Emergency Room of Mercy Fitzgerald Hospital. She stayed for nearly two weeks before being transferred back to ManorCare, this time to the Hospice unit where she died from her injuries less than 2 months later. Ms. Howard’s cause of death was cervical fracture and pneumonia.

Documented Fall Risk Doesn’t Guarantee Better Supervision
Falls are happening with alarming frequency at nursing homes and assisted living facilities. Regardless of a care plan that indicated Ms. Howard required constant care, she still managed to suffer a fall so tragic that it took her life. The nursing home abuse and neglect attorneys at Levin and Perconti have successfully represented the families of many loved ones who have found themselves in the same unfortunately circumstances. Click here to view some of the many victories we’ve secured for victims of falls and other acts of nursing home and medical negligence.

 

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On Wednesday, we posted the findings from CNN’s Investigative Report Sick, Dying and Raped in America’s Nursing Homes. The stories and facts discussed in the report are tragic and the reality that these violations are increasingly happening to our loved ones has haunted us. As a reminder, the elder abuse attorneys at Levin & Perconti would like to share the signs and symptoms of sexual abuse in the elderly. The information below is courtesy of The National Consumer Voice for Quality Long-Term Care.

Physical indicators of sexual abuse include:

  • Bruises around inner thighs, the genital area or breasts