Maryland Nursing Home Lawyer Blog

Maryland Nursing Homes Demand Higher Priority for Power Restoration During Outages

November 15, 2011 | Lebowitz & Mzhen

Power outages across the east coast in the wake of Hurricane Irene left many Maryland nursing homes without electricity for five to eight days in late August. In all, about 800,000 people experienced power loss due to the hurricane, which caused billions of dollars of property damage and cost at least one life. We have previously commented on the risks posed to nursing home residents in Maryland from flooding and other natural disasters. The extent and length of recent power outages create perhaps an even greater risk to resident safety, considering the dependence of so many on medical devices and monitoring equipment. An overhaul of power restoration procedures, as well as an examination of nursing homes’ plans for dealing with power outages, are crucial to protecting the safety of nursing home residents.

Maryland citizens, nursing home advocates, and nursing home administrators are all calling on the state to review the system of power restoration after natural disasters. Power outages forced closures of businesses and schools across the state, and made it difficult for people to both evacuate and return home. The Maryland Public Service Commission (PSC), the state agency tasked with regulating utility companies, has opened an investigation into the performance of Baltimore Gas and Electric (BGE) during and after the storm. BGE created a stir when it announced that the $81 million it spent restoring power may lead to higher rates on services in the future. The PSC must approve any rate increase.

BGE and other utilities use a priority system to manage power restoration, focusing first on public safety, including hospitals, and critical infrastructure such as pumping stations. Nursing home representatives and others are asking that nursing homes receive the same priority as hospitals, since they serve very similar functions for their residents. A nursing home administrator testified to the PSC that “today’s nursing homes closely resemble hospitals in caring for medically complex patients, using the same type of equipment, like ventilators, G-tubes, breathing machines and dialysis machines.” In an order issued on October 31, the PSC has asked BGE and other utility companies to draft new implementation plans based on the experience of Irene, to collaborate in finding a way to reliably inform customers of when to expect power restoration, and to notify the PSC of the protocols used to determine priority for power restoration. The PSC hopes to create consolidated procedures for future hurricanes and other disasters.

Caring for Nursing Home Residents During Natural Disasters

November 8, 2011 | Lebowitz & Mzhen

Several major storms have hit the east coast of the U.S. this year, sending rains and floods to Maryland. September saw substantial flooding in parts of the state because of Hurricane Irene and Tropical Storm Lee, with rising flood waters washing away bridges and roads and threatening major population areas. Towns along the Susquehanna River in particular faced dangerous flooding. Residents of a nursing home in Havre de Grace, where the river meets Chesapeake Bay, had to evacuate in early September when floods threatened to engulf their facility. In all, 165 residents evacuated to other nearby facilities. This raises the question of how nursing homes can best ensure residents’ safety in such dire situations.

A nursing home in Chestertown, Maryland, located across the Susquehanna River from Havre de Grace, took in some of the evacuated residents, according to the Chestertown Spy. Administrators at the Chestertown facility learned of an SOS to all area facilities through Lifespan, a mid-Atlantic network of senior care providers. They took in sixteen evacuees, who remained at the facility for about three days, arriving on a Thursday night and returning to Havre de Grace Monday morning. Fortunately, the Susquehanna did not flood enough to threaten the nursing home, and residents were able to return without injury or serious incident.

Who has responsibility for the safety and well-being of residents during such emergency situations? Such determinations depend heavily on the individual circumstances. The basic facts on the ground may prevent well-meaning caregivers from providing adequate care, but a fundamental obligation to take reasonable steps to ensure safety remains. Even in a critical evacuation, caregivers must take all steps possible to provide necessary care. Residents needing a high level of care, including ongoing monitoring and medication, may face significant risks in emergencies, and nursing home staff must do whatever is reasonably within their power to provide for those needs. This usually involves transfer to another facility that can provide needed care. The facility taking custody of residents takes on responsibility for their well-being, but residents’ home facility still bears responsibility for seeing that they make it somewhere that can adequately care for them.

The situation in Maryland turned out well, but not all recent disasters have had positive outcomes. The most famous example, of course, is 2005’s Hurricane Katrina in Louisiana. Thirty-two residents of a nursing home in St. Bernard Parish died when flood waters hit their home after the hurricane made landfall. While many heroic stories of rescues and escapes came out of that area, residents of one home simply did not evacuate in time, with tragic results.

Maryland Home Health Care System Settles Medicaid Fraud Allegations

November 3, 2011 | Lebowitz & Mzhen

A home healthcare service provider based in Columbia, Maryland, Maxim Healthcare Services, Inc., has entered into settlement agreements with the federal government and several state governments to resolve allegations of fraudulent reimbursement claims. The federal case, which involved both civil and criminal complaints, accused the company of defrauding public programs like Medicaid and the Veterans’ Affairs program out of over $61 million since at least 2003. The complaints alleged a nationwide scheme that involved fraudulent billings to government programs, fraudulent documentation of billing records, and false statements to government officials.

Maxim provides home health care services across the country, which includes full-time homecare services to adult and elderly patients. The company discusses the importance of care planning and home safety on its website. It has a national reach, with hundreds of offices across most U.S. states. Maxim’s services potentially involve the same level of care and responsibility as in the nursing home environment, where the patient becomes fully reliant on the caregiver for support. While it does not provide inpatient care for the elderly, the case demonstrates how a facility can come to place other concerns above the best interests and well-being of its patients, a concern that is always present for nursing home residents.

The federal government’s case against Maxim alleged violations of the False Claims Act, a federal statute first passed in 1863 after widespread fraud by government contractors during the Civil War. Congress has amended the law several times, most recently in 2009 with passage of the Fraud Enforcement and Recovery Act, and in 2010 with the Patient Protection and Affordable Care Act. Generally speaking, the statute prohibits knowingly making false statements or presenting false records in order to receive a payment or benefit from the federal government. Some states also have similar false claims statutes protecting state-level public programs.

Allegations of Illegal Pharmaceutical Marketing Rarely Lead to Penalties for Doctors

October 25, 2011 | Lebowitz & Mzhen

A recent review by the Washington Post of lawsuits against pharmaceutical companies shows that drug manufacturers pay billions in settlements and criminal penalties for irregular and illegal marketing of prescription medications. Doctors who participate in the marketing schemes, usually by accepting kickbacks for prescribing particular drugs, however, rarely if ever receive any punishment. This presents a concern for nursing home residents and their advocates. While the big drug companies present deeper pockets and higher-profile targets for regulators, doctors work on the front lines, so to speak, and have the greatest ability to assess the need for particular drugs. Ultimately, the decisions of doctors have the capacity to do the most harm to patients in these situations.

This Maryland Nursing Home Lawyer Blog has reported earlier on a complaint by the U.S. Department of Justice against Johnson & Johnson regarding alleged kickback payments to a large pharmacy for sales of antipsychotic medications like Risperdal. The suit alleged that J&J’s actions violated warnings from the Food and Drug Administration regarding the accuracy of Risperdal’s marketing materials. Drug manufacturer Eli Lilly pleaded guilty in 2009 to illegally marketing the antipsychotic drug Zyprexa to elderly patients. Accusations of marketing fraud regarding prescription medications and outright kickbacks to pharmacies and doctors in exchange for promoting certain drugs have hit at least fifteen pharmaceutical and medical device companies in the past few years.

The liability for illegal marketing and payment of kickbacks can be substantial for these companies. Eli Lilly paid $1.4 billion for penalties in the Justice Department’s case and settlements in four separate lawsuits related to Zyprexa. Alpharma paid $42.5 million in settlements related to allegations of kickbacks for prescribing the painkiller Kadian. Overall, accusations of marketing fraud and kickbacks have cost the industry $6.5 billion since 2008
The review of these cases found no instances of doctors facing serious sanctions or even professional discipline. Since 2008, federal investigations into kickbacks and illegal marketing have identified 75 doctors who allegedly participated. None received any sort of monetary or other criminal penalty. Few state medical boards conducted investigations into the doctors’ conduct. Many of the doctors allegedly involved say they have been unfairly labeled as key players in these schemes, when in fact they also rely on the drug companies for information on potential uses of their products. Still, doctors should approach any off-label use (i.e. any use not explicitly approved by the FDA) with caution.

October is Long-term Care Residents’ Rights Month in Maryland and around the Country

October 19, 2011 | Lebowitz & Mzhen

October is Long-term Care Residents’ Rights Month, a time to celebrate the rights and dignity of people living in nursing homes. Thanks to strong legislation and regulations, nursing home residents have a legal guarantee of certain protections against abuse and neglect. Residents do not give up their rights as adult citizens solely by virtue of entering a nursing home environment. All nursing homes participating in Medicaid and Medicare must respect the rights covered by this law.

Congress passed the 1987 Nursing Home Reform Act after a study conducted by the Institute of Medicine found alarming rates of inadequate care, abuse, and neglect in nursing homes around the country. The Institute recommended a wide range of reforms that became law as part of a budget bill. The law aims to protect the physical, mental, and psychosocial wellness of nursing home residents by requiring nursing homes to provide certain services and creating a “Resident’s Bill of Rights.” Nursing homes must comply with the law in order to remain eligible to accept Medicare and Medicaid payments. Laws passed in 2010 expand on the rights protected by the 1987 law.

Nursing homes are required by this law to provide each resident with a personalized comprehensive care plan, along with periodic assessments of their care. They must provide nursing and social services, as well as rehabilitation and the ability to dispense prescription medications. Facilities with more than 120 beds should employ a full-time social worker to assist residents.

The Residents’ Bill of Rights lists numerous rights protected by federal law. These include:
– Freedom from abuse, neglect, or restraint;
– Privacy;
– Dignity;
– A clean and safe environment;
– Accommodation of particular medical and other needs;
– Communication and visitation with others;
– Participation in one’s care plan and frequent updates regarding one’s health condition;
– Complaint without fear of retribution;
– Control of one’s own finances, if possible; and

– Refusal of treatment when desired.

The Nursing Home Reform Act created an enforcement procedure that begins with routine inspections by state governments to review a nursing home’s certification. Surveyors may also investigate specific complaints or allegations, reviewing the amount of danger faced by residents and the likelihood that the alleged incident might occur again. One serious consequence of non-compliance with the law involves loss of Medicare and Medicaid eligibility. The law allows penalties ranging from remedial training for staffers to state management of the nursing home or outright termination of the home’s provider agreement with the state.

Investigation Finds New York Caregivers for Mentally Disabled Rarely Lose Their Jobs, Even in Cases of Wrongdoing

October 11, 2011 | Lebowitz & Mzhen

A study conducted by the Poughkeepsie Journal has found that the state of New York has only succeeded twice in twenty attempts since 2007 to fire employees at local state-run facilities that care for the developmentally disabled. The Journal reviewed 1,900 pages of documents relating to disciplinary proceedings for 98 group homes and 6 institutions throughout the state. It found that only two percent of disciplinary actions since 2007, eight out of 341, resulted in firing, even in cases involving serious allegations of neglect or abuse.

Examples from the study of people who kept their jobs included a female staffer who held a patient by the hair and, while jabbing the patient in the face and yelling obscenities, forced the patient to drink an unknown liquid. Another case involved an aide who held a patient down on the ground by kneeling on the patient’s back and grabbing at the patient’s face, and who then tried to coerce a coworker into altering the report. That worker faced an assault charge in criminal court.

Not all workers involved in these cases actually remained at their facilities. The study found that many accepted resignation or unpaid suspensions, which keeps them on the payroll and has far less public impact than outright termination. It also allows for the possibility that individuals with disciplinary history, which might include abuse and neglect, may be able to obtain employment in homes for the developmentally disabled again in the future.

This situation in New York state underscores the importance of remaining educated about nursing homes, assisted living facilities, and other group care facilities to which you might entrust a loved one. These facilities clearly have an obligation to provide diligent and competent care, since they provide nearly all the daily needs of the residents.

In Maryland, facilities caring for people with developmental disabilities, which may include autism or Down syndrome, are regulated by the Developmental Disabilities Administration. It is part of the Office of Health Care Quality in the Maryland Department of Health & Mental Hygiene. Regulatory compliance is handled by the Developmental Disabilities Unit, which has established a system for complaints regarding misconduct in regulated facilities. Facilities providing full-time care to people with developmental disabilities must be licensed by the state, and reports of abuse, neglect, or misconduct certainly factor into licensing decisions.

Indictments Issued in Two Separate Maryland Nursing Home Assault Cases

October 4, 2011 | Lebowitz & Mzhen

Two recent incidents involving assaults on Maryland nursing home residents have led to indictments for abuse and assault. The incidents occurred in different facilities in nearby towns, but both involve nursing home employees allegedly assaulting vulnerable residents. The cases demonstrate the importance of vigilantly protecting the rights of nursing home residents who may find themselves helpless against the unscrupulous or criminal behavior of a few employees who might take advantage of that helplessness.

In the first case, a caregiver at a nursing home in Lutherville, Maryland is accused of stealing $80 from a blind 94 year-old resident, as reported by the Lutherville-Timonium Patch. According to court documents, the employee entered the resident’s room by pretending to be a different employee who had come to turn on the air-conditioning unit. She asked the resident, who in addition to being blind needs a hearing aid, to borrow money. The man told her no, at which point she allegedly tried to take his wallet from his pocket. She threw him out of his bed and onto the ground when he resisted her. When the man screamed for help, another employee intervened.

The employee denied allegations of theft and assault to police investigators that day. The next day, however, she turned herself in to the police. She has been charged with robbery, theft, and second-degree assault. She has also lost her job at the nursing home. The nursing director told the newspaper that if she is convicted, the Maryland Board of Nursing could take steps to keep her from ever working in a nursing home again. The robbery charge is a felony, assault in the second degree and theft of less than $1,000 are misdemeanors. She faces up to 15 years imprisonment for the robbery charge alone.

The second case involves a nursing home in Timonium, Maryland. A geriatric nursing assistant has been charged with abuse of a vulnerable adult in the second degree, neglect of a vulnerable adult in the second degree, and assault in the second degree. Each charge is a misdemeanor under Maryland law. An investigation by the Medicaid Fraud Control Unit, part of the Maryland Attorney General’s office, and the Maryland State Police originated from a referral from the Baltimore County Police Department. The alleged assault occurred in October 2010. Fewer details are available on this case, since it has only recently been filed. The employee is alleged to have assaulted an 84 year-old resident of the nursing home. Each of her charges are misdemeanors, and she faces up to 10 years in prison.

Pressure Mounts to Reduce Use of Antipsychotics in Dementia Patients

September 27, 2011 | Lebowitz & Mzhen

Antipsychotic medications are typically used to treat patients with schizophrenia or bipolar disorder, helping reduce and control delusional thinking and hallucinations. In nursing homes around the United States, staff also use antipsychotics for patients suffering from dementia as a way of controlling paranoia and aggression. These medications can be useful for the small percentage of dementia patients who actually demonstrate psychotic behavior and constitute a risk to other nursing home residents and themselves. For most dementia patients, antipsychotics may only further isolate them and make them even less communicative. This is of particular concern to families and loved ones of dementia patients, who wish to ensure that they are receiving the best possible care.

An FDA warning from 2005 gives notice to doctors of an increased risk of death from pneumonia or heart attacks among dementia patients prescribed atypical antipsychotics. This class of drug includes Abilify, Geodon, Invega, Risperdal, Seroquel, and Zyprexa. The agency added the older class of drugs known as typical antipsychotics to that warning in 2008. Typical antipsychotics include drugs like Thorazine and Haldol. Despite the warnings, off-label use of antipsychotic medications in dementia patients continues.

The Associated Press reports that nursing homes are beginning to take notice of the risks inherent in using antipsychotics for dementia and are gradually decreasing their rate of use. One nursing home in Florida has seen a reduction in the rate from twenty-five percent of all patients to a current rate of fourteen percent. A Brooklyn, New York nursing home went from thirty to fifteen percent without much trouble. Most patients taken off the antipsychotic regimen reportedly displayed significant improvements in both mood and behavior.

Among nursing home staff, the concern is that, without the antipsychotic medications, they will be unable to control aggressive or violent dementia patients. Some patients may truly need such medication, especially since there are no FDA-approved drugs specifically treating behavioral aspects of dementia. Patient advocates cited by the Associated Press argue that the use of such medications has more to do with keeping patients sedated for staff convenience. In situations where use of antipsychotics may be endangering a patient’s life, all other concerns should be secondary to protecting the patient.

“Granny Cam” Technology May Be Effective at Deterring Nursing Home Abuse

September 20, 2011 | Lebowitz & Mzhen

The use of surveillance cameras to monitor treatment of elderly patients by nursing home staff, sometimes known as “granny cams,” is becoming more and more common in Maryland and around the country. While granny cams raise some concerns about the privacy rights of the patients, they have proven to be effective at exposing abuse that might have otherwise gone undiscovered, and state legislatures and agencies are taking notice.

This Maryland Nursing Home Lawyer Blog has previously reported on incidents when granny cams provided evidence of abuse, including a New Jersey case in which the family of a nursing home patient have sued for wrongful death after finding footage of an employee removing the patient’s oxygen mask and hitting her, which they claim led to her death. An Ohio man captured evidence of nursing home staff slapping his Alzheimer’s-stricken mother, shoving her into bed and into her wheelchair, and slamming her against walls. Three nursing home workers in Pennsylvania were arrested when hidden camera footage showed them mocking a patient while forcing her to stand topless.

The nursing home industry has vigorously fought legislative efforts to compel nursing homes to allow placement of cameras in patients’ rooms. Privacy advocates, as well as doctors, have also opposed such legislation at times, arguing that placement of cameras could be used to violate patients’ privacy, considering that nursing home patients requiring assistance in performing daily routines may often appear undressed on camera. Nursing homes further argue that the use of cameras may erode the trust between patients and staff and act as an invitation to lawsuits without good cause. Nursing home reform advocates, however, increasingly favor legal requirements that nursing homes allow cameras.

Some states have passed legislation preventing nursing homes from blocking the use of cameras, although Maryland is not yet one of them. Former Maryland Delegate Sue Hecht introduced such legislation several times beginning in 2001, after she witnessed her mother, Vera, suffering abuse at the hands of nursing home staff. Several bills titled “Vera’s Law” did not make it out of their committees, but a bill passed in 2003, also titled “Vera’s Law,” that required the Maryland Department of Health and Mental Hygiene to develop guidelines that do opt to allow use of electronic monitoring devices with the consent of the patient or the patient’s guardian. The Department issued its guidelines on December 1, 2003, and those guidelines remain in effect today.

Flu Vaccination of Nursing Home Staff Linked to Decline in Patient Flu Outbreaks

September 14, 2011 | Lebowitz & Mzhen

A study has identified a link between increasing rates of influenza vaccination among nursing home staff and decreasing rate of flu infection among patients. The study, which looked at 75 New Mexico nursing homes, found an 87% decrease in the likelihood of a flu outbreak in facilities where 51% to 75% of direct care workers received vaccinations. This supports earlier findings from the Centers for Disease Control and Prevention, which has encouraged healthcare workers to get vaccinated against the flu.

Interestingly, the study also found that high rates of vaccinations among nursing home patients led to higher odds of a flu outbreak in that home. Researchers suggest that this is due to lower rates of vaccination among staff in nursing homes with high rates of patient vaccinations. This finding would further support the conclusion that high rates of staff vaccination keeps outbreak rates low.

The Centers for Disease Control and Prevention (the “CDC”) currently recommends that healthcare workers obtain annual vaccinations against the flu. Their research found that only 13% of healthcare workers reported a requirement of vaccination from their employers. At the same time, a substantial majority of healthcare workers reported vaccinations being available at work, often at no charge.

Outbreaks of disease in the nursing home environment are a persistent concern. Officials at a nursing home in Turtle Creek, Pennsylvania are currently fighting an outbreak of Legionnaire’s disease that has sickened eight people so far. A 2009 study in Ontario, Canada found that, of the 83 disease outbreaks reviewed, 91% of them occurred in long-term care facilities. A 2003 study published in the journal Clinical Infectious Diseases found that one-third of the reports of infectious diseases from nursing homes involved sudden disease outbreaks. The study examined reports of respiratory infections, including influenza, tuberculosis, and pneumonia; gastrointestinal illnesses such as E. coli, salmonella and viral agents; skin infections; and antibiotic-resistant bacteria. The study concluded that the environment of nursing homes allows easy transmission of disease outbreaks, largely due to close living conditions, lack of proper diagnostic equipment, and the already-diminished health condition of many nursing home residents. Recommendations included greater management plans and surveillance of symptoms in patients to try to recognize diseases before they reach outbreak status.

Vaccinating nursing home staff against known contagions is an important step in this process. Nursing homes must also commit to maintaining a clean environment for its residents. Many infectious diseases can reach outbreak status in a nursing home simply due to a lapse in cleaning. Respiratory illnesses such as influenza are commonly transmitted directly from one person to another, but germs can also persist on various surfaces. An elderly individual, practically one with an already-suppressed immune system, who comes into contact with a contaminated surface risks infection.