Maryland Nursing Home Lawyer Blog

Increasing Numbers of LGBT Seniors May Require Additional Training For Nursing Home Workers

December 11, 2012 | Lebowitz & Mzhen

There is a growing population of lesbian, gay, bisexual, and transgender (LGBT) seniors who face certain challenges in addition to those that come with growing older. Although a growing number of states now have legislation protecting individuals from discrimination on the basis of sexual orientation in areas such as education, employment, and marriage, nursing homes and other assisted care facilities often must decide for themselves how to handle the changing demands.

According to an article in the Boston Globe, 80 percent of LGBT seniors in Massachusetts are afraid to reveal their sexual orientations to care providers, and they are also unlikely to seek continued care for the same reason. These numbers are likely representative of other states, as well.

The problem is complex. While LGBT seniors’ fears are often substantiated, their unwillingness to come out in their assisted living communities makes others unwilling to reveal their sexual orientations either. Providing adequate training to nursing home staff specifically on the issue of LGBT senior care is part of the solution.

It is also important that supervisors be extra diligent in ensuring that LGBT seniors are not subject to abuse or neglect by their supposed caregivers. If an individual wishes not to come out, an abusive employee could use knowledge of their secret to extort the resident or otherwise use it against her. Less obvious would be instances of neglect. A worker might express disapproval of a resident’s sexual orientation by being neglectful of care.

LGBT seniors also face a risk of abuse from their fellow residents. While that risk is present for any resident, LGBT individuals tend to be more susceptible to it. The onus is on the nursing home employees to notice when inter-resident abuse occurs and to stop it.

Fourth Circuit Upholds Dismissal of False Claims Act Lawsuit Alleging Nursing Home Medicaid Fraud: United States ex. rel. Black v. Health & Hospital Corp. of Marion County

December 4, 2012 | Lebowitz & Mzhen

The Fourth Circuit Court of Appeals affirmed the dismissal of a qui tam lawsuit brought under the False Claims Act (FCA) against a nursing home for alleged Medicaid fraud. The relator in United States ex. rel. Black v. Health & Hospital Corp. of Marion County alleged that an Indiana nursing home fraudulently submitted bills to the Medicaid system for services it had not rendered. The United States declined to intervene in the lawsuit. The relator alleged that bills submitted for federal matching funds from the Medicaid system exceeded amounts spent on actual care to Medicaid patients, and argued that this constituted fraud. The trial court dismissed the suit for lack of subject matter jurisdiction. The case demonstrates the complex nature of the Medicare and Medicaid systems and the difficulty of understanding, let alone enforcing, laws prohibiting fraud.

The relator, Paul R. Black, resides in Indiana. After unsuccessfully filing a qui tam suit in an Indiana federal court, he filed the present case in the U.S. District Court for the District of Maryland against Health & Hospital Corporation of Marion County (HHC), an Indiana nursing home. The district court described the three state-level Medicaid funding mechanisms at issue in Black’s suit:
– The Upper Payment Limit (UPL) system sets an upper limit for the amount a state may reimburse medical providers equal to the amount it could receive from Medicare.
– Intergovernmental transfers (IGTs) allow states to transfer money from local government entities to the state government in order to fund the state’s portion of Medicaid expenses.

– Certified public expenditures (CPEs) are expenditures made by Medicaid providers that qualify for matching funds directly from the federal Medicaid system. They must receive certification from the federal Centers for Medicare and Medicaid Services (CMS).

Black’s lawsuit, as well as the Indiana suit filed before it, alleged that HHC was over-reporting expenditures to the Medicaid system using fraudulent IGTs or CPEs, thereby making an unlawful “profit” on Medicaid-funded services. Black asserted four causes of action for violations of the FCA, including factually false claims to CMS, legally false claims to CMS, submission of false records and statements, and conspiracy to defraud the United States. HHC moved to dismiss the suit, and the trial court agreed.

Study Shows Frequent Administration of Antipsychotics to VA Nursing Home Residents

November 30, 2012 | Lebowitz & Mzhen

A recent study adds to the growing body of research regarding overuse of antipsychotic medications in nursing home patients and the associated risks of severe medical complications and death, with a specific focus on residents of nursing homes run by the U.S. Department of Veterans Affairs (VA). The American Public Health Association’s Medical Care Section published the report in the November issue of its official journal, Medical Care. The VA is reportedly making a variety of efforts to reduce antipsychotic use among patients who would be better served by other treatments. This is particularly true of dementia patients in nursing homes.

The researchers, led by Walid Gellad, M.D., M.P.H., reviewed data from the VA’s 133 Community Living Centers around the country from the period January 2004 through June 2005. The data covered 3,692 veterans 65 years of age and older who were admitted to one or more of these facilities for at least ninety days. They found that 948 patients, just over one-quarter of the total number, received an antipsychotic medication, but that only 59.3% of them had an “evidence-based indication for use.” Patients who displayed aggressive behavior, who were receiving nine or more different medications, who were also receiving antidepressants or dementia medications, and/or who were living in an Alzheimer’s or dementia care unit were more likely to receive antipsychotic drugs. The researchers found that patients with dementia but no recorded history of psychosis were just as likely to receive antipsychotic drugs as those with a documented need for such drugs.

Federal Program Tries to Help Nursing Home Residents in Maryland and Washington DC Return to Their Communities

November 23, 2012 | Lebowitz & Mzhen

A federal program intended to help transition nursing home residents who receive Medicaid into community- and home-based care has had some success in Maryland, but people in many states have experienced difficulties with relocation. The Money Follows the Person (MFP) program, initiated in early 2008, is intended to help individuals who might benefit from home-based services to get out of long-term care institutions. It could potentially help ease the burden on overcrowded or understaffed long-term care facilities, thereby improving care for all residents.

The primary goal of MFP, according to the Center for Medicare and Medicaid Services, is to help state governments “rebalance their long-term care systems” to favor home- and community-based services (HCBS) over institutional services. HCBS may include small group homes, private homes, or apartments with some degree of living assistance. The program is also intended to expand the use of Medicaid funds to allow patients greater choice in long-term care services, and to provide oversight and quality control over HCBS that receive Medicaid funds. Forty-three states, including Maryland and Virginia, and the District of Columbia have signed on to the program. The Affordable Care Act of 2010 extended the program from its initial five-year period until 2016, appropriated additional funding, and expanded the eligibility criteria for patients.

Hyattsville Nursing Home Under Investigation for Alleged Neglect

November 14, 2012 | Lebowitz & Mzhen

A nursing home in Hyattsville, Maryland has been under investigation by state health officials for more than a year following multiple allegations of neglect, including at least one death. The number of complaints and cited deficiencies led the state to put the nursing home on a national register of nursing homes with poor track records. Although the nursing home has faced fines totaling thousands of dollars, state officials claim that it has not resulted in improvements to care at the facility.

According to WTTG News in Washington DC, the St. Thomas More nursing home received sixty citations from state health inspectors in 2010 for deficiencies. It received thirty-six citations in 2011, and it has received twenty-seven in 2012 as of mid-November. The state’s Office of Health Care Quality (OHCQ) has reportedly cited it for deficiencies such as medication errors, residents’ rights violations, and failure to follow patient care plans. About three months ago, according to one complaint, a patient died after nursing home staff failed to provide adequate emergency medical treatment. A medical malpractice lawsuit accused the nursing home of negligence in the 2005 death of a resident from bedsore-related complications. The nursing home settled the suit in 2011 for an undisclosed amount.

WTTG reported the story of James Franklin, a former patient at the facility who allegedly nearly died from injuries similar to those of the decedent in the lawsuit mentioned above. Franklin went to St. Thomas More after a hospital discharge, and at the time of his admission, medical records reportedly showed that he had a bedsore described as “small and healing.” Franklin returned to the hospital a month later, where the bedsore was found to have grown to cover a large section of his back and buttocks. The wound had turned gangrenous, and infection had spread deep into his tissues. He was in septic shock and at risk of imminent death. He is reportedly recovering at a different nursing home, but still has health difficulties resulting from the bedsore. Franklin’s wife filed a formal complaint against St. Thomas More with OHCQ. An investigation of Franklin’s case by state health officials reportedly found no evidence of abuse or neglect, but the Franklins are persisting in their claims.

Verdict Against Nursing Home in Medication Error Case Based on Res Ipsa Loquitur Doctrine: Freudeman v. Landing of Canton

November 7, 2012 | Lebowitz & Mzhen

A woman’s estate filed suit against the nursing home where she lived until the end of her life, alleging that a medication error by nursing home staff caused severe health complications leading up to her death. A jury found the nursing home liable in Freudeman v. Landing of Canton and awarded compensatory and punitive damages. The defendant filed a motion for judgment as a matter of law on multiple issues, including whether the court properly instructed the jury about the doctrine of res ipsa loquitur and whether the plaintiff had made an adequate case for punitive damages. The court ruled in the plaintiff’s favor on the motion.

Dorothy Freudeman lived at the Landing of Canton, an elder residential facility in Ohio. In addition to her residency contract, she signed a separate contract for the administration of prescribed medications by the nursing home staff. According to the plaintiff’s complaint, Dorothy Freudeman received an incorrect medication from a staff member that resulted in dangerously low blood-sugar levels. This had a severely adverse impact on her health, until she died fifteen months later.

The executor of Dorothy Freudeman’s estate, Dennis Freudeman, filed suit against the Landing in a Common Pleas Court in Ohio. The suit alleged that the nursing home, through its staff, was negligent in administering the wrong medication, and that this was the proximate cause of the decedent’s injuries and a contributing factor in her death. The defendant removed the case to the U.S. District Court for the Northern District of Ohio. After a jury trial beginning in August 2011, the jury found for the plaintiff and awarded damages.

Study Suggests Norovirus Poses Risk to Nursing Home Residents of Hospitalization or Death

October 26, 2012 | Lebowitz & Mzhen

A recent review of norovirus outbreaks in nursing homes found a correlation between outbreaks and higher rates of both hospitalizations and mortality among residents. While the correlation does not necessarily mean that the norovirus directly causes a greater number of hospitalizations or deaths, the data obtained by the study could prove useful in identifying risks faced by nursing home residents during outbreaks of communicable disease. This can in turn help nursing home administrators enact policies to protect and preserve their residents’ health and safety.

The norovirus is a highly contagious virus commonly associated with the stomach flu. It can affect anyone, regardless of age or general health condition, with symptoms ranging from stomach pain and nausea to acute gastroenteritis. People can contract an infection from other infected people, contact with contaminated surfaces, or ingestion of contaminated food or water. According to the Centers for Disease Control and Prevention (CDC), the norovirus sickens around 21 million people in the U.S. annually, and it is responsible for as many as seventy thousand hospitalizations and eight hundred fatalities per year.

The study, “Hospitalizations and Mortality Associated With Norovirus Outbreaks in Nursing Homes, 2009-2010,” was published in the October 24/31, 2012 online edition of the Journal of the American Medical Association. The researchers reviewed records from Medicare and the CDC for a period from January 2009 through December 2010 from three states: Oregon, Pennsylvania, and Wisconsin. Their review covered 308 nursing homes, with a combined total of 407 reported outbreaks of norovirus. The norovirus outbreaks lasted a median of thirteen days. Twenty-nine percent of the total number of reported hospitalizations and seven percent of the reported deaths occurred during reported outbreaks.

New Methods Available to Help Nursing Home Staff Track Life-Threatening Infections

October 17, 2012 | Lebowitz & Mzhen

Healthcare-associated infections (HAIs), generally defined as bacterial, viral, or fungal infections contracted by patients while receiving medical treatment, are a potentially major hazard for residents of nursing homes and other long-term care facilities (LTCFs). As many as 2.8 million LTCF patients may contract HAIs, some of them fatal, every year. A group of epidemiologists recently revised the definitions used in the surveillance of HAIs, providing new tools to document and track infections. The Centers for Disease Control and Prevention (CDC) has also issued new guidelines to help LTCF’s monitor HAIs. These new tools will hopefully help reduce the development and spread of infections among nursing home residents.

HAI Surveillance Definitions

In the October 2012 issue of the Society for Healthcare Epidemiology of America’s (SHEA) journal, Infection Control and Hospital Epidemiology, a panel of experts present a new set of definitions for use in monitoring LTCF infections. The existing set of definitions, known as the McGeer criteria, date back to 1991.

A group of experts led by Allison McGeer published a set of definitions in the February 1991 issue of the American Journal of Infection Control. The purpose of the McGeer criteria was to establish a uniform set of guidelines to monitor infections in nursing homes, such as standards for identifying newly-contracted or worsened acute infections that require monitoring.

According to the paper containing the revised definitions, the McGeer criteria work well in nursing homes providing non-acute care to older residents, but they do not necessarily address concerns faced in LCTFs providing acute care and care to younger patients. New types of nonhospital treatment facilities have appeared since 1991, so newer criteria for identifying and tracking HAIs is necessary.

Nurse’s Aide Gets Five Years in Prison for Stealing Nursing Home Residents’ Wedding Bands

October 11, 2012 | Lebowitz & Mzhen

A nurse’s aide at a Virginia veterans’ nursing home received a five-year prison sentence in September 2012 for a scheme that involved stealing residents’ wedding rings and selling them. She pleaded guilty to receiving and selling stolen property in July. She allegedly had a partner who actually stole the rings, then gave them to her to sell. The partner is still awaiting sentencing for grand larceny and selling stolen property. In addition to the prison sentencing, the court ordered both aides never to work in the nursing field again.

According to the Franklin News-Post, Ashley Michelle Sweeney and Brittney Heather Cook worked as contract nurse’s aides at the Virginia Veterans’ Center in Roanoke. Prosecutors described how the two aides worked together to carry out the theft scheme. Cook reportedly stole the wedding bands from nursing home residents. She would reportedly then give the rings to Sweeney, who allegedly sold them at two different pawn shops for a total of $360. The rings’ appraised value totaled about $4,600. In all, the two were charged with stealing and selling five rings. Their alleged victims were veterans of World War II and the Korean War, between 77 and 89 years of age.

Mandatory Arbitration Clauses in Maryland Nursing Home Admissions

October 3, 2012 | Lebowitz & Mzhen

People involved in legal disputes may choose, instead of litigation, to submit their case to a process like mediation, where a neutral person tries to help all sides in a dispute reach a mutually agreeable settlement; or arbitration, where one or more neutral individuals hear arguments from all sides to a dispute and propose a solution. Arbitration can be non-binding, meaning any party can reject the arbitrator’s decision and proceed to litigation; or binding, in which case no party may challenge the arbitrator’s decision in a court of law. These practices can offer an efficient means for settling grievances, but in some cases, people who might prefer litigation find themselves contractually bound to arbitration, often binding. Maryland and federal law generally allow nursing homes to include arbitration provisions in their contracts with residents with some limitations. Anyone signing admission papers for a nursing home, for themselves or someone else, should review them very carefully.

NBC News recently reported on a man who checked his father into a nursing home after his father suffered a stroke. When his father died due to alleged negligence, the man sought advice as to his legal rights. He learned that an arbitration agreement was among the many papers he had signed during his father’s admission, thus barring him from the courthouse.

Arbitration can be an expensive process for individuals, with the arbitrator’s fees often split equally between the parties. Arbitrators are often former attorneys or judges with high hourly rates, unlike judges in the judicial system, whose paycheck comes from taxpayers. The process can lack the transparency of the court system, where most documents are public record. Arbitration is a private transaction, occurring behind closed doors. For reasons that remain a subject of dispute, studies cited by NBC have shown that arbitrations result in fewer monetary awards for patients or their families than litigation.