Maryland Nursing Home Lawyer Blog

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Congress originally enacted the OAA in 1965 as the first federal effort to provide services to older Americans on a wide scale.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.

Maryland Nursing Home Staffer Pleads Guilty to Abuse of a Resident

February 14, 2012 | Lebowitz & Mzhen

A former staffer at a Timonium, Maryland nursing home pleaded guilty late last month to abuse of a vulnerable adult in the second degree. This Maryland Nursing Home Lawyer Blog previously reported on the case of Shirleen Diane Sheppard when prosecutors first indicted her last year. Sheppard worked as a geriatric nursing assistant at Stella Maris. According to the Maryland Attorney General’s Office, Sheppard was attending an 82 year-old female resident on October 17, 2010. She became angry and slapped the patient’s face. She also reportedly refused to put ointment on the patient’s rash and kept the assistance call button away from the patient.

Another staffer witnessed the incident, cared for the patient, and then reported the matter to the nursing home’s administration. Sheppard admitted to the assault, and the nursing home fired her. The patient reportedly did not suffer any lasting injury.

Sheppard was indicted in the Circuit Court of Baltimore County on four counts: one count of second-degree abuse of a vulnerable adult, two counts of second-degree neglect of a vulnerable adult, and one count of second-degree assault. All of these charges are misdemeanors under Maryland law. Second-degree assault carries a potential penalty of ten years imprisonment and a fine of up to $2,500. The abuse and neglect of a vulnerable adult charges each carry potential prison terms of five years and fines of $5,000. Maryland’s criminal laws define “abuse or neglect of a vulnerable adult” as the deliberate infliction of pain or injury, “cruel or inhumane treatment,” sexual abuse, and failure to provide “necessary assistance and resources” like food and shelter. The second-degree abuse or neglect statute applies to a caregiver, parent, household or family member, or other person with “permanent or temporary care or responsibility for the supervision” of an adult deemed “vulnerable.” “Vulnerable” is defined as “lack[ing] the physical or mental capacity to provide for [one’s own] daily needs.”
Sheppard formally entered a guilty plea to one count of second-degree abuse of a vulnerable adult at a hearing on January 18, 2012. The judge accepted her plea and imposed a three-year suspended prison sentence. She will be on probation for three years and must complete 150 hours of community service within the next year. The judge also barred her from working as a geriatric nursing assistant during her probation term.

Maryland Podiatrist Sentenced to Four Years in Prison for Scheme Involving Nursing Home Patients

February 7, 2012 | Lebowitz & Mzhen

A Maryland podiatrist, Larry Bernhard, was sentenced by a U.S. District Judge in Baltimore to fifty-four months in prison, plus three years’ supervised release, for a series of fraudulent bills to Medicare totaling more than $1.1 million. He pleaded guilty to charges that included health care fraud and identity theft. His scheme involved misrepresentation of podiatric services in billing statements to Medicare, and theft of nursing home patients’ names and identities in order to bill for services never actually rendered.

Bernhard operated a podiatry practice, Chesapeake Wound Care Center, out of his home in Gambrills, Maryland. He has been licensed as a podiatrist by the state of Maryland since 1981. He first came to the attention of law enforcement over allegations that, between April 2002 and October 2004, he submitted a series of fraudulent claims to Medicare. In about eighty separate claims, he claimed reimbursement for podiatric services rendered at “skilled nursing facilities” that were actually performed at hospitals. He did this allegedly in order to claim a higher rate. He and the government entered into a settlement agreement in October 2007 regarding these allegations. As part of that agreement, Bernhard agreed to a three-year period of exclusion from all federal health care programs, including Medicare and Medicaid.

According to Bernhard’s recent plea agreement, he began a new fraudulent billing scheme soon after signing the settlement agreement. Beginning in October 2007, and continuing until July 2010, he submitted fraudulent bills to Medicare Advantage plans and received upwards of $1.1 million. Prosecutors estimated that at least $1 million of the total amount was compensation for podiatry services that he never actually performed. In order to enact this scheme, Bernhard admitted, he used the personal identifying information of about two hundred nursing home patients for services that were never rendered.

Bernhard’s actions clearly violated his 2007 settlement agreement with the government. He pleaded guilty to aggravated identity theft and health care fraud. In addition to the four-and-one-half year prison sentence, he must pay restitution of $1,122,992.08.

This case illustrates some troubling vulnerabilities in the nursing home population. He used the names and other identifying information of nursing home patients as the basis for his false billing statements. The press release from the FBI describing Bernhard’s sentence does not go into detail about how the scheme affected the nursing home patients. Presumably they were simply names that Bernhard appropriated, but it could be possible, in a similar scheme, for someone to actually withhold needed treatment yet bill Medicare for the services. It is also possible that a doctor or other medical professional could order unnecessary treatments in order to pad a bill.

Jury Awards $200 Million in Nursing Home Wrongful Death Case Where Defense Did Not Show Up

January 25, 2012 | Lebowitz & Mzhen

A jury in Pinellas County, Florida rendered a $200 million verdict against the parent company of a nursing home. The lawsuit stemmed from the 2004 death of a resident who fell down a flight of stairs in a wheelchair. The case is particularly interesting not only because the verdict might be the largest in Florida history, but also because no one appeared at trial on behalf of the defendant.

In October 2004, 92 year-old Elvira Nunziata “slipped away” from a group of residents at Pinellas Park Care and Rehabilitation Center, according to the Tampa Bay Times. She entered a stairwell and, still strapped into her wheelchair, fell down about ten stairs. Staff did not notice her absence for at least an hour, and she died soon after the paramedics arrived. Former employees testified that the door to the stairwell should have been locked, but that staff would often leave the door unlocked so they could use it for smoke breaks.

The nursing home reportedly had a history of citations by the state for various violations, as well as complaints for abuse. Former aides said that the nursing home was often understaffed. Testimony at trial also indicated that Nunziata, who began living at the nursing home in August 2003, had a history of illnesses, falls, and other injuries, and was beginning to experience symptoms of dementia. Staff was allegedly aware of Nunziata’s tendency to wander off and did not adequately monitor her. She reportedly had alarms on her wheelchair and clothing that should have alerted staff of her whereabouts.

Nunziata’s son filed suit on behalf of her estate in 2005. The nursing home was managed by Trans Health Management, Inc. The company no longer manages the home, and is now defunct. Its parent company, Trans Health, Inc., is currently subject to a Maryland receivership. This led to interesting questions of liability during the course of the lawsuit. An attorney representing the management company tried to delay the trial on behalf of the receivership, but the trial judge denied the motion.