Maryland Nursing Home Lawyer Blog

Appeals Court Reinstates Class Action Lawsuit Against Nursing Home Operator Alleging Rights Violations

August 29, 2012 | Lebowitz & Mzhen

A California appeals court has reinstated a putative class action lawsuit filed by patients at sixteen nursing homes located in Alameda County. The defendants in Shuts v. Covenant Holdco, LLC, et al are related business entities that own and operate the homes. The plaintiffs allege various violations of state regulations regarding the quality of care provided to nursing home residents. After a superior court judge dismissed the case based on the defendants’ argument that only state regulators have the right to enforce nursing home standards, the court of appeals reversed and reinstated the case.

Covenant Care, a company based in Orange County, operates forty-five nursing homes in seven states. At least sixteen are located in Alameda County, California. The plaintiffs presented themselves as a putative class of people who resided in Covenant’s nursing homes during a “class period” from December 15, 2006 until December 16, 2010. State law, according to the appeals court, allows a current or former nursing home resident to file suit against the facility’s licensed operator for violations of the Patients’ Bill of Rights or other rights under state or federal law. The plaintiffs claimed that Covenant routinely understaffed its facilities in violation of state law, which they said requires a nursing home to provide each patient with at least 3.2 hours of skilled nursing care per day. Covenant allegedly failed to meet this requirement on at least thirty-five percent of the days in the class period.

Covenant’s demurrer to the complaint argued that the plaintiffs’ entire case relied on allegations of a breach of the minimum-nursing-hour requirement, but that the California Department of Health had the exclusive authority to enforce the requirement. The defendants also asserted the doctrine of equitable abstention, which allows a court to abstain from hearing a case that would require the court to act in the capacity of an administrative agency. The circuit court dismissed the plaintiffs’ case without leave to amend the pleadings. The plaintiffs appealed to the First Appellate District.

Nursing Home Administrator Receives 20-Year Prison Sentence for Health Care Fraud

August 22, 2012 | Lebowitz & Mzhen

A former nursing home operator received a twenty-year prison sentence from a federal district judge in Atlanta, Georgia on August 14, 2012. George Houser, age 64, was convicted in April of defrauding state Medicare and Medicaid programs. As a result of the fraudulent scheme, nursing home residents went without adequate care for years.

According to the U.S. Attorney’s Office, Houser and his wife ran two nursing homes in Rome, Georgia from July 2004 to July 2007, and another home in Brunswick from September 2004 to September 2007. The two Rome nursing homes each housed about one hundred residents, and the Brunswick facility had 204 beds. Houser submitted bills to Medicare and Medicaid for about $39.4 million during the period from July 2004 to September 2007. He certified to the government that he was providing health care, a clean living environment, and a good quality of life for the residents of the three homes. He received $32.9 million in payments from Medicare and Medicaid.

Of the total amount received from the federal government, prosecutors alleged that Houser appropriated over $8 million for personal use. This included $2.7 million to purchase real estate as part of a planned hotel in Rome, as well as plans for hotels in Brunswick and Atlanta. He also allegedly bought a $1.4 million house for his ex-wife, and put her on the payroll of one of the nursing homes in lieu of alimony.

During this time, conditions for the residents in the three nursing homes were described repeatedly as “inadequate.” Numerous staff members reportedly resigned after paychecks started bouncing. As employees left, few applicants sought the open positions. This left the facilities significantly understaffed. The facilities also fell into disrepair, with few resources applied towards upkeep of the buildings. Roof leaks and broken air conditioning units became common. As a result of non-payment to the nursing homes’ vendors, the facilities experienced shortages of food, medicine, and even cleaning supplies. Some employees used their own funds to buy food for residents.

Nursing Home Locked Down by Police After Receiving Threat Letter

August 13, 2012 | Lebowitz & Mzhen

Police in New Milford, New Jersey put a local nursing home on “lockdown” after the facility received a letter containing threats and references to the recent shootings at a movie theater in Aurora, Colorado. As a precautionary measure for the safety of the nursing home’s residents, police kept residents in their rooms while searching for potential safety threats. No threats were found, and no suspects have been identified. All the residents are safe, and both police and nursing home staff say that they had access to care throughout the crisis.

A letter arrived at the Woodcrest Health Care Center the morning of Wednesday, July 25, 2012. This was less than a week after the shooting incident in Colorado, in which a masked gunman wearing full body armor shot dozens of people during a midnight screening of the new Batman movie. The gunman killed twelve people, injured more than sixty, and terrified the whole nation. The letter received by Woodcrest reportedly included handwritten references to the Aurora shootings and other threats, as well as pasted newspaper headlines. The letter made threats referencing explosives, knives, and guns. Nursing home staffers contacted the police, who arrived at about 11:40 a.m. Although the letter was apparently signed, police have not said by whom.

Police “locked down” the facility, instructing residents to remain in their rooms. They kept the residents there for about two hours. Bomb squad investigators, assisted by canine units, swept the facility and found no trace of explosives. The police chief reportedly requested the assistance of the county prosecutor’s Counter-Terrorism Unit, although it is not clear if they arrived on the scene before the scene was cleared at around 2:00 p.m.

Medical Study of Hip Injuries Placed Over 1,300 Nursing Home Residents at Risk, Government Says

August 7, 2012 | Lebowitz & Mzhen

A study involving researchers affiliated with Harvard and other academic institutions, intended to look into prevention of hip fractures, actually may have exposed over 1,300 participants to increased risk of hip injury. The Office of Human Research Protections (OHRP), part of the U.S. Department of Health and Human Services, ordered investigators to send notifications to the participants, who are elderly nursing home residents, detailing the risks to which they were exposed during the 2002-06 study. This concludes a year-long investigation by OHRP.

The Hip Impact Protection Project (HIP PRO) investigated the effectiveness of padded undergarments known as “hip protectors” in preventing injury to elderly nursing home residents. The study involved thirty-seven nursing homes, testing the efficacy of a type of undergarment that contained a hip pad on either the right or left hip. The researchers found that the single-side protective garments “may have caused unanticipated changes in behavior” among participants. The researchers concluded that hip protectors offered no significant protection against hip fractures. The study was published in the August 2008 issue of Clinical Trials, and it was also included in a 2007 issue of the Journal of the American Medical Association.

Contractor Kickbacks Result in Prison Sentence for Former Nursing Home Executive

July 27, 2012 | Lebowitz & Mzhen

A former executive with a nursing home company based in Roanoke, Virginina has been sentenced to just over five years in prison after pleading guilty to multiple counts involving mail fraud and tax evasion. He was accused of receiving more than half a million dollars in kickbacks from contractors, awarding contracts based on payments rather than on bids, and falsifying tax returns in order to conceal such income. Four contractors have also faced prosecution for payment of kickbacks. The case is important to advocates for victims of nursing home abuse and negligence because of the importance of maintaining adequate facilities for the care of nursing home residents. Kickbacks and other forms of corruption compromise the ability of nursing home administrators to effectively care for their patients.

Roanoke-based Medical Facilities of America (MFA) operates over forty nursing homes located around North Carolina and Virginia. John D. Henderson worked for MFA as its director of maintenance and renovations. According to prosecutors, he demanded and received $541,821 in kickbacks from three or more companies between 1998 and 2006. Those companies then received more than $5 million in contracts from MFA for construction work at its facilities. Henderson allegedly created false records of higher bids from competitors to create the appearance of a competitive bidding process. He was also accused of filing fraudulent tax returns to conceal over $400,000 in income. MFA fired Henderson in 2006 after learning about the kickback scheme.

Federal Grant Program Helps Maryland Improve Care Options for Seniors

July 19, 2012 | Lebowitz & Mzhen

The Patient Protection and Affordable Care Act (ACA), enacted by Congress in 2010 and known colloquially as “Obamacare,” has caused an historic amount of controversy over the past two years. It recently survived a Supreme Court challenge, and some of its provisions have begun to take effect. While Americans may disagree vehemently about all or parts of the law, some provisions have begun to benefit Maryland seniors in significant ways. A grant from the federal government, part of the Balancing Incentive Program (BIP), should allow the Medicaid program to cover more patients and provide seniors with more care options. Seniors who may not require full-time care in a nursing home may now be able to obtain home- or community-based care. This could free up space and resources in overburdened and understaffed full-time care facilities.

President Obama signed the ACA into law on March 23, 2010. The hefty bill mainly addresses the rights and duties of health insurance providers and patients. The most controversial provision, the “individual mandate” to purchase health insurance if it is not available through employment or public assistance, survived review by the Supreme Court in a June 28 ruling. The law includes provisions, most of which have not yet taken effect, preventing insurance companies from denying coverage for a “pre-existing condition,” restricting when and how an insurer may cancel coverage, and much more.

Maryland Nursing Homes Deal with Storms, Power Outages, Heat Waves

July 12, 2012 | Lebowitz & Mzhen

A massive storm struck Maryland on June 29, 2012, causing many parts of the state to struggle to restore power and other utilities. A severe heat wave made matters even worse, with more than a week of temperatures approaching one hundred degrees. Power restoration was completed after nine days, but further storms may still leave people vulnerable to the heat. This is a particular concern for nursing home residents. More than thirty nursing homes lost power after the storm, and at least four went without air conditioning for several days.

The storm began in northern Indiana and swept east, reaching the Atlantic coast in about twelve hours. Wind storms known as “derechos,” which typically accompany thunderstorms, hit parts of the Midwest roughly once a year. They are less common in mid-Atlantic states like Maryland. The intense heat wave seems to have worsened wind conditions in this case, creating what meteorologists are calling a “super derecho.” Wind gusts of up to ninety-one miles per hour hit some areas, equivalent to a category 1 hurricane. By the time the storm passed through Maryland, it had killed thirteen people and knocked out power for millions.

Further storms and one of the region’s longest recorded heat waves added to the death toll. By earlier this week, the heat wave had accounted for eighteen deaths in Maryland. Most of the victims were elderly or had chronic conditions like diabetes. Temperatures reached into the high 90’s and low 100’s for twelve days before finally breaking on July 8.

Study Finds 21% of Short-Stay Patients in Nursing Homes Will Sustain Falls

July 5, 2012 | Lebowitz & Mzhen

A nationwide study, led by a researcher at the University of Southern California, recently reviewed the rates of falls among short-stay nursing home residents. This was the first major study to analyze falls among newly admitted patients. Numerous studies have reviewed fall rates among long-term nursing home residents, and those risks are generally well understood. The study’s findings may help nursing home administrators and staff identify short-term patients who are at greater risk for falls and help take precautions to protect them from injury. Putting staff on notice of important risks faced by residents is an important step in preventing nursing home negligence and keeping residents safe.

The study, which was published in the May 2012 issue of the Journal of the American Geriatrics Society, focused on Medicare or Medicaid patients during their very first nursing home admission. Researchers analyzed clinical assessments prepared by the Centers for Medicare and Medicaid Services, known as Minimum Data Sets (MDS), from 2006 for over 230,000 individuals residing in more than 10,000 nursing homes located around the U.S. The MDS assessments provide a comprehensive overview of a patient’s “functional capabilities” in order to assist nursing homes in determining a patient’s needs. The study also looked at how different nursing homes are organized, with particular attention to the professional composition of the homes’ nursing staffs.

During the first thirty days in a facility, the study found, twenty-one percent of new nursing home residents will sustain at least one fall. This is critically important because falls are associated with greater risks of health complications and death, even among short-stay residents. The study proposes several possible causes for the increased fall risk. Nursing homes with high ratios of certified nursing assistants (CNA’s) to patients appeared to have a lower risk of falls. This suggests that the “hands-on patient care during high-risk activities” offered by CNA’s reduces the risk of falls.

Choking Deaths in Nursing Homes Lead to Calls for More Staff Training

June 27, 2012 | Lebowitz & Mzhen

An unusually high number of cases of nursing home residents choking to death in Connecticut has led to calls for improved training for staff members. The state has fined three nursing homes in three unrelated choking deaths, all occurring within a period of three months. In each incident, nursing home staff left the resident unattended while eating. In two of the cases, the resident had food obtained from outside the nursing home either without the knowledge or permission of the staff. Nursing homes owe a duty to their residents to keep them safe and protect them from unusually dangerous conditions, which includes special needs regarding food.

An elderly resident of the Torrington Health and Rehabilitation Center in Torrington, Connecticut choked to death on a peanut butter and jelly sandwich on February 3, 2012. An investigation determined that nursing home staff left the resident unattended with the sandwich. The resident had strict diet restrictions and required close supervision while eating. The state health department fined the nursing home $510, although the fine could have been as much as $3,000.

Lawsuit Claims Abuse and Neglect at School

June 21, 2012 | Lebowitz & Mzhen

A federal lawsuit brought by the parents of several students against a Kansas military school alleges multiple acts of abuse and neglect. Although fellow students committed many of the alleged acts of abuse, the lawsuit claims that adult staff members often knew about the abuse, and that some were even present for some incidents. Faculty, staff, and administrators did not intervene, according to the complaint, thus breaching their duty to protect their students. The claims are similar to claims brought for alleged nursing home abuse and neglect, since both involve a duty to care for vulnerable individuals, and liability for failure to protect people under their care from harm. This could include failures to protect nursing home residents from abuse by staff members or other residents.

A group of parents first filed suit on March 5, 2012 in the U.S. District Court for the District of Kansas. Their children were students at St. John’s Military School, a residential boarding school in Salina. The school teaches grades 6 through 12 and houses all of its students on its premises.

The plaintiffs allege that the school puts incoming students through a series of physical training and other initiation procedures, and that it places significant disciplinary authority in its senior students. This gives the older students powers over the younger students more properly exercised by adults, the complaint says. The school allegedly knows of abuses that occur within this system, including many that result in physical injury to students, but does nothing to address it.