Maryland Nursing Home Lawyer Blog

Nursing Home Closes After Years of Ongoing Problems

April 27, 2012 | Lebowitz & Mzhen

A Rhode Island nursing home has voluntarily closed after several years of complaints and investigations over non-compliance with both state and federal standards of care. Faced with the revocation of its license, the facility’s management concluded that it would take longer to complete the required improvements to bring the facility into full compliance than was available. The facility has therefore closed, and the state is assisting in moving residents to new facilities.

Complaints against Pawtuxet Village Care and Rehabilitation Center in Warwick, Rhode Island go back at least five years, according to local news station WJAR. Rhode Island’s Secretary of Health and Human Services said that the facility has a “long history of noncompliance” and of not maintaining appropriate standards of care for a nursing home. Neglect topped the list of complaints, which have included allegations of poor maintenance and management of residents’ medications, medication errors, bedsores and other injuries, and other quality of life issues. The state has reportedly cited the nursing home “repeatedly” over the past three years.

State officials cited the facility on February 24, saying the nursing home patients were in “immediate jeopardy.” On March 13, the state notified the nursing home that it would pursue action to revoke the facility’s license. The state also recommended to the Centers for Medicare & Medicaid Services (CMS) that it should cut off the facility’s participation in both the Medicaid and Medicare programs.

The nursing home’s administration reportedly retained a third-party management company to take over operation of the facility and try to turn it around. It was apparently not enough. CMS suspended the facility from its programs, and the state pressed forward on its license revocation action. The nursing home had a right under state law to a hearing on the revocation. On April 10, nursing home administrators announced that they would close the facility, saying that the home’s compliance problems could not be fixed on the state’s timetable.

Owner of Nursing Home Charged with Neglect for Second Time in Eight Years

April 20, 2012 | Lebowitz & Mzhen

Police in North Charleston, South Carolina arrested a nursing home owner on Thursday, April 12, 2012 after an inspection of the facility reportedly found extensive evidence of neglect. Andrea Magwood, age 68, is accused of neglecting vulnerable adults under her care. She went free on April 16 on a $250,000 bond. Her nursing home is currently closed, and authorities have transferred the thirteen residents to other facilities. Magwood faced a similar investigation and charges in 2004 relating to alleged abuse at the same facility.

The Governor’s Office of Ombudsman, the office charged with investigating reports of abuse or neglect in nursing homes, contacted North Charleston police on April 5 with concerns about the health of one of the residents. A 79 year-old resident of Magwood’s nursing home, Fair Havens Manor, had reportedly been admitted to the hospital. Doctors diagnosed him with severe dehydration and malnutrition, and they reportedly found a subdural hematoma on his head that possibly required surgery. Inspectors arrived at the home later on April 5. They reported finding mold clinging to the walls and cockroaches “crawling all over.” Residents allegedly received rotten food, and medications lacked labels or records that would indicate to which resident they belonged.

By April 12, North Charleston authorities had condemned the home’s two buildings and arrested Magwood. EMS personnel assisted police in removing the residents from the facility and taking them to a nearby hospital for medical assessment. From there, the residents would either receive medical care or be transferred to another facility.

Prosecutors charged Magwood with neglect of a vulnerable adult, a felony offense in South Carolina with a maximum penalty of five years in prison. State statutes also allow the attorney general’s office to being a civil action for a penalty of up to $30,000 for a nursing home owner who allegedly fails to protect residents from neglect. A judge set Magwood’s bond at $250,000 on April 13, and she reportedly left jail on Monday, April 16.

Magwood faced similar charges in 2004 when another resident reportedly suffered malnutrition and dehydration. Police raided the home, then known as Genesis Nursing Home, In June 2004 after a bank teller reported several large withdrawals by one of the residents while accompanied by Magwood. The teller also reported that the resident showed signs of physical abuse.

Up to One in Seven Alzheimer’s Sufferers Live Alone, According to Study

April 13, 2012 | Lebowitz & Mzhen

The Alzheimer’s Association, an organization established to promote both care for Alzheimer’s patients and research into eradicating the disease, recently published a report outlining the prevalence and cost of the disease in Maryland and the rest of the country. In addition to its conclusion that the cost of caring for Alzheimer’s patients will increase greatly over the next twenty to thirty years, the study found that a significant percentage of Alzheimer’s sufferers live alone, with no one to provide care even on a part-time basis. Alzheimer’s already constitutes a very large portion of nursing home and extended care costs. The increased incidence of Alzheimer’s and the lack of support for many sufferers cause concern for us as advocates for nursing home residents suffering abuse and neglect.

Alzheimer’s disease is the most common form of dementia, causing progressive degeneration of brain functions. It most often afflicts people over the age of 60. Little is known about the disease’s precise cause and means of progression, and there is no cure. The disease often manifests first with confusion or irritability, and can progress to forgetfulness and difficulty with language. People with the disease often suffer serious long-term memory loss, and eventually even bodily functions are affected, leading to death.

According to the Alzheimer’s Association, 5.4 million Americans currently suffer from the disease, 5.2 million of them over the age of 65. Almost thirty percent of Alzheimer’s sufferers receive Medicare or Medicaid. Seventy-five percent of people with Alzheimer’s will go to a nursing home by age 80, the Alzheimer’s Association estimates.This is compared to four percent of the general population, meaning that the costs will strain states’ Medicaid budgets.

The report found that about 15.2 million people provide non-professional care to Alzheimer’s sufferers nationwide, including 278,490 in Maryland. This mostly consists of family members and friends providing unpaid care. The report estimates the nationwide economic value of this unpaid care at $210 billion in 2011. Maryland’s share of that amount exceeds $3.8 billion. The caregivers themselves also tend to incur additional health care costs due to the stress of caring for an Alzheimer’s patient. This costs Maryland caregivers around $173 million each year.

Approximately 800,000 Alzheimer’s patients live alone, according to the study, and about half of them have no “identifiable caregiver.” These individuals face serious risks of illness and death due to their progressive inability to care for themselves. This affects not only their health but public health, as state resources must go towards caring for them, which could mean less funds from Medicaid and other programs for nursing homes. It could also mean influxes of residents into nursing homes, putting strain on administrators and staff.

U.S. Senators Call for Reauthorization of Older Americans Act

April 5, 2012 | Lebowitz & Mzhen

At a press conference on March 28, 2012, U.S. Senator Bernie Sanders (I-Vt.) called for reauthorization of the Older Americans Act (OAA), legislation that provides support for American elders. The terms “elder” and “older person” here refer to people aged 65 or older. Fourteen other senators joined Sanders in calling for reauthorization, including Maryland Democratic Senator Barbara Mikulski. Sanders introduced a bill reauthorizing the OAA on January 26, titled the “Older Americans Act Amendments of 2012.” The bill currently has no cosponsors and is pending in the Senate Committee on Health, Education, Labor, and Pensions.

Congress originally enacted the OAA in 1965 as the first federal effort to provide services to older Americans on a wide scale. The law created a National Aging Network consisting of the federal Administration on Aging (AOA) within the Department of Health and Human Services and state- and local-level agencies. The Network funds various community services that that benefit older adults, including nutrition and health support, caregiver support, and legal assistance. Many programs focus on older populations in underserved rural areas and on promoting job skills and community engagement among older people.

Amendments to the OAA in 1992 authorized the creation of an office within the AOA to address issues relating to elder abuse, or “vulnerable elder rights protection.” This led to the establishment of the National Center on Elder Abuse (NCEA) as a permanent office. The NCEA, first formed in 1988, serves as a national resource center for information on elder abuse. It conducts research and compiles statistics, and it provides education on recognizing signs of abuse and preventing abuse. It works with organizations at the state and local level that work on elder rights issues to help people work to prevent elder abuse and neglect by nursing homes, caregivers, and family members.

Senator Sanders’ bill reauthorizing the OAA includes several additions and modifications to the existing law. Perhaps most importantly for nursing home residents, the bill would provide additional support for the AOA’s Long-Term Care Ombudsman Program. The Ombudsman Program supports programs in all fifty states that advocate for the rights and interests of nursing home residents. Ombudsmen review complaints of nursing home residents regarding issues like poor food or care quality, poor administrative services, and conflicts between residents. Serious issues of abuse and neglect may call for the assistance of an elder abuse attorney, but the federal and state ombudsmen offer a valuable support network for nursing home residents.

Federal Government Launches Antipsychotic Medication Initiative to Protect Nursing Home Residents

March 29, 2012 | Lebowitz & Mzhen

The Centers for Medicare and Medicaid Services (CMS), the federal agency that administers Medicare and Medicaid , has launched an initiative to promote reducing the use of antipsychotic medication in nursing home patients. The goal of the initiative is to spotlight the misuse of these medications in nursing homes, improve their monitoring and regulation, and promote non-drug treatments for certain conditions in nursing home residents. Nursing home staff often use antipsychotics to treat dementia symptoms, which may include agitation and aggressive behavior. Use of antipsychotic medications in dementia patients can have serious side effects, however, increasing their risk of complication and even death. The CMA’s initiative is the latest in a series of government efforts to curb antipsychotic use.

The CMS formally launched its initiative on Thursday, March 29 with a one-hour webcast entitled “Initiative to Improve Behavioral Health and Reduce the Use of Antipsychotic Medications in Nursing Homes [sic] Residents.” It describes the initiative as a “multidimensional approach” that incorporates research, public outreach, regulation, and training.

This Maryland Nursing Home Lawyer Blog has previously reported on the issue of misuse of antipsychotic drugs in dementia patients. The primary purpose of these drugs is the treatment of schizophrenia and bipolar disorder. Nursing home staff sometimes use these drugs with dementia patients, which is fine for the minority of dementia sufferers who also demonstrate symptoms of schizophrenia or psychotic behavior. Antipsychotic medications may only worsen the isolation and communication problems for the remainder of the nursing home residents with dementia.

A report released by the U.S. Department of Health and Human Services (HHS) in 2011, based on an audit conducted in 2007, found that nursing homes often use antipsychotic medications in ways that are neither approved for Medicare coverage nor approved by the Food and Drug Administration (FDA). According to the study, eighty-eight percent of the antipsychotic prescriptions issued that year were for nursing home residents with dementia. Overall, as many as 1 in 7 nursing home residents received an “atypical” antipsychotic drug. The Inspector General for HHS wrote that such uses “violate government standards for unnecessary drug use.”
HHS additionally found that some pharmaceutical companies have specifically marketed certain drugs to nursing homes. In 2009, the nation’s largest pharmacy dealing with nursing homes, Omnicare, agreed to pay $98 billion to the federal government and multiple state governments to settle allegations of receiving illegal kickbacks from drug manufacturers. A lawsuit filed by the U.S. Department of Justice in early 2010 against Pharmaceutical company Johnson & Johnson accused the company of paying kickbacks to pharmacies, including Omnicare, to both purchase and promote its products to nursing homes. This included the antipsychotic drug Risperdal.

Study Shows Higher Mortality Among Elderly Female Nursing Home Residents with Vitamin D Deficiencies

March 21, 2012 | Lebowitz & Mzhen

A recent study found that elderly women residing in nursing homes may face greater rates of mortality if they are not getting enough vitamin D. The study will appear in the Journal of Clinical Endocrinology and Metabolism, a publication of The Endocrine Society. Researchers at the Medical University of Graz, Austria, looked at a sample group of 961 residents. Members of the sample group had an average age of 83.7 years. The study found that, not only does vitamin D deficiency carry a greater risk of death, but that vitamin D deficiency may be common in nursing homes. This could have important implications for the nutritional care that female residents receive in nursing homes.

The researchers examined the 961 residents and followed up twenty-seven months later. They found that 284 individuals, roughly thirty percent of the group, had died during that time. They noted low vitamin D levels in 92.8 percent of the group members. While vitamin D deficiencies have been common knowledge among researchers for some time, the study authors said, no one has developed good strategies for treatment yet. Given the increased risk of bone fractures and other such injuries in patients with low vitamin D, the researchers urge the medical community to work on ways to remedy these deficiencies.

Low levels of vitamin D can have multiple health effects. Scientists have known about an increased rate of mortality due to vitamin D deficiency for some time, but the Graz study has helped tie it to specific populations. Vitamin D is also very important for bone health. Deficiency can cause bone damage, sometimes known as rickets, and it can contribute to an overall loss of bone density that makes fractures and breaks more likely. Some research suggests that vitamin D supplements can help with cardiovascular disease, some cancers, asthma, multiple sclerosis, immune strength, and certain neurodegenerative diseases like Parkinson’s. These claims are all controversial, and no scientific consensus exists on any of them. The U.S. Food and Drug Administration only allows the food industry to claim on its labels that vitamin D “may reduce the risk of osteoporosis.”
Vitamin D may be obtained through certain types of fish, fruits and vegetables, or foods specifically fortified with vitamin D. According to the National Institutes of Health, many people meet much of their vitamin D requirements through exposure to sunlight. Ultraviolet radiation in sunlight interacts with chemicals already present in the skin to produce vitamin D. People who spend most of their time indoors, which could include many nursing homes residents, may face vitamin D deficiencies.

Proposed Maryland Legislation Would Increase Criminal Penalties for Elder Abuse

March 16, 2012 | Lebowitz & Mzhen

A bill that would increase criminal penalties for people who engage in elder abuse has met with unfavorable reports in the judiciary committees of both houses of the Maryland Legislature. The bill, known as the John H. Taylor Act, has been introduced in the Legislature several times, and its supporters are not likely to give up. The bill’s namesake, was ninety years old when he suffered several severe beatings by an in-home caregiver in 2007. He was recovering from multiple strokes at the time. One of the beatings was caught on tape, and his daughter, Jacqueline Taylor, learned that he had suffered three more beatings from his caretaker that month. She showed the video to the House Judiciary Committee at a hearing in January and testified in support of the bill.

According to a website set up by Jacqueline Taylor, the caretaker, Anastacia Oluoch, was arrested in 2007 and charged with four counts each of abuse or neglect of a vulnerable adult, second degree assault, and reckless endangerment. All of the charged offenses are felonies. She was released on bail and fled the country before her trial date. She was reportedly arrested in Kenya in 2011 and could be extradited to the United States. John H. Taylor passed away in 2009.

Under current Maryland law, abuse or neglect of a vulnerable adult applies to a person with a “contractual undertaking to provide care” to an adult lacking “the physical or mental capacity” to provide self-care. “Abuse” includes intentionally inflicting pain or injury and sexual abuse. “Neglect” includes the withholding of food, medical care, and other necessary services. Abuse or neglect that involves sexual abuse or results in death or serious physical injury is a first-degree offense, carrying a maximum penalty of ten years’ imprisonment and a $10,000 fine. All other abuse or neglect is a second-degree offense, with a punishment of up to five year’s imprisonment and a fine of $5,000.

The proposed legislation would modify the statutes defining both first- and second degree abuse or neglect of a vulnerable adult. It would prohibit a District Court commissioner from releasing a defendant charged with either offense prior to trial. A judge, subject to certain requirements and conditions, could still authorize a defendant’s release, with provisions specifically preventing a defendant from leaving the country. The bill also doubles the maximum penalties for first- and second-degree offenses. Critics of the bill worry that it may infringe on a defendant’s due process rights and limit judges’ discretion.

Resident Charged with Arson for Fire in Assisted-Living Facility

March 6, 2012 | Lebowitz & Mzhen

Prosecutors in Northfield, Minnesota have charged a 46 year-old assisted-living facility resident with arson after he allegedly set fire to clothing in his closet, displacing forty other residents for several days. William Jerald Kelly reportedly came forward to admit he started the fire. The criminal complaint, filed in Rice County District Court in late February, says that Ryan claimed he started the fire because he was “tired of people being mistreated and being bullied.” He allegedly told an officer after the fire that he did not tell anyone of his concerns because “it wouldn’t have done any good.” Police put Kelly on a psychological hold the day after the fire and sent him to a local hospital for evaluation. The Northfield Deputy Police Chief told the media that Kelly “likely has a mental disability.” He is scheduled for his first court appearance on April 3. The felony arson charge carries a penalty of up to twenty years in prison, a fine of up to $20,000, or both.

The fire occurred on Sunday, February 5, 2012 at about 7:30 p.m. in Kelly’s apartment. The evacuation reportedly began during the halftime show of the Super Bowl. Fire crews evacuated all of the residents and contained the fire to the one unit. The rest of the facility suffered smoke damage, however, so residents were not able to return immediately. Fortunately, no one was injured, and the residents were able to return to the facility within a few days.

Residents were evacuated to several locations, including nearby hospitals and a Red Cross shelter. They first went to a church across the street from the facility, where emergency responders picked them up. All residents were accounted for within minutes of the evacuation.

Police almost immediately suspected that the fire was set intentionally. Kelly reportedly approached police soon after the evacuation to admit his role in starting it. The criminal complaint says that he told police he set fire to some of his clothes in his closet. He then triggered the fire alarm, locked the door to his bedroom, and went out an entrance door and into the parking lot. Kelly reportedly told police he did not intend to hurt anyone.

Man Who Won $200 Million Judgment Against Nursing Home for His Mother’s Wrongful Death Faces Corporate Shell Game When Trying to Collect

February 28, 2012 | Lebowitz & Mzhen

Suffering from dementia and confined to a wheelchair, 94 year-old Florida nursing home resident Elvira Nunziata needed near-constant supervision. Still, she managed to pass through a door that should have been locked, falling down a stairwell and sustaining fatal injuries in 2004. Her son, Richard Nunziata, knew someone at the nursing home had made a fatal mistake.

Nunziata filed suit against the nursing home for wrongful death, claiming that negligent supervision by staff led directly to his mother’s death. We reported last month in this Maryland Nursing Home Lawyer Blog that a jury awarded him $200 million in damages. There was one major problem with the verdict, however: no one showed up to defend the suit at trial. This case demonstrates how the law holding nursing homes liable for injuries has not caught up with the way nursing homes are owned and managed.

For-profit nursing homes, which have surged in the past decade or so according to the Tampa Bay Times, often split ownership of a nursing home among several different business entities. Each company would own different parts of the nursing home operation or handle responsibility, and liability, for different parts of the business. One company might own the building housing the nursing home, while another company owns the equipment and yet another handles payroll and personnel. If one part of a nursing home operation runs into legal trouble, a parent company can dissolve that business entity and create a new one. This process has little to no transparency. In this environment, it can be exceedingly difficult for someone seeking to make a claim for an injury to even identify which business is liable. It is even difficult for state and federal regulators to determine where to put liability for regulatory infractions.

In Nunziata’s case, Pinellas Park Care and Rehab Center, the home where his mother last lived, was owned by one company and operated by another. Trans Health Management, Inc., the home’s operator, reportedly had its corporate status revoked by the state of Florida by the time Nunziata sued in 2005. A forensic accountant testified at trial that Trans Health’s business was sold in 2006. Three separate companies each bought or “inherited” Trans Health’s operations, management contracts, and liabilities. The company that ended up with its liabilities, Fundamental Long Term Care Inc., also lost its corporate status and no longer exists. The accountant testified that most of these companies existed for the sole purpose of shuffling Trans Health’s assets and liabilities around. Nunziata’s best bet, for which there may be some precedent, is to go after the private equity companies that put all these businesses together in the first place.

Nursing Home Addresses Safety Concerns, Deals with Allegations of Sexual Abuse

February 21, 2012 | Lebowitz & Mzhen

A Rhode Island nursing home faced an ultimatum from the government in January: fix various problems by February 1 or lose its status as a Medicare and Medicaid provider. The Centers for Medicare & Medicaid Services (CMS), the federal agency tasked with managing both programs, sent a letter to Hebert Nursing Home in Smithfield, Rhode Island on January 19 outlining infractions of seven regulations that the nursing home needed to address. The regulations in questions dealt with issues of mistreatment or neglect of residents, residents’ dignity and respect, residents’ well-being, administration of the facility, and the medical director’s responsibilities. A CMS spokesperson called the alleged infractions “serious” and said they posed “immediate jeopardy” for residents, but could not disclose many specific details of the allegations.

CMS has legal authority to monitor nursing homes that are part of the Medicare and Medicaid systems, and it has the responsibility of maintaining standards of quality in all of the nursing homes it monitors. As part of its corrective actions, CMS began fining Hebert $5,500 a day beginning December 22, 2011. It also stated that it would begin denying payments under both its programs for new patients after January 23. It gave Hebert’s administrators until February 1 to address CMS’s concerns, after which it would terminate Hebert’s involvement with Medicare and Medicaid. This would effectively destroy Hebert’s business since so many nursing home residents rely on one or both of these programs to pay for their care.

By the beginning of February, CMS had withdrawn its complaint after receiving a satisfactory response from Hebert, indicating that it was addressing CMS’s concerns. At about the same time, however, allegations publicly surfaced that several staff members had voiced concerns about the sexual abuse of a resident. Two certified nursing assistants and a psychiatric nurse reportedly gave statements to police on November 30 and December 1, 2011, describing incidents of sexual abuse they had witnessed at the nursing home.

The three employees stated that they saw two women sexually abusing their 89 year-old mother, a resident at the facility, on several occasions while visiting her. In their statements to police, they reported seeing the women touching their mother in her genital area and other acts of abuse. The two women reportedly told the workers that they needed to check their mother’s incontinence, but the psychiatric nurse claims that there would be no reason for them to do so manually.