Nursing Home Law Blog

Lexington, KY: Kentucky Association for Justice's Nursing Home Litigation Conference

David Cohen — Fri, 31 May 2013 13:02:49 -0500

I was quite honored to have been chosen to be part of a panel with some of the best nursing home litigators in the country. My presentation covered the importance of the federal regulations and their relationship to resident safety. With over 80 trial lawyers attending, the presentations were a great success. Many thanks to my dear friend (and the event's organizer), Jay Vaughn, Esq.

New Law Proposed Making Mandatory Pre-Dispute Arbitration Illegal in Nursing Homes

Michael A. Brusca — Mon, 13 May 2013 10:51:26 -0500

Arbitration is a process of resolving complaints without the use of the court system. A person basically signs a document waiving their right to a jury trial, and gets nothing in return. The rules for arbitration are different, the process is confidential, and an arbitrator decides the case as opposed to a jury. The family pays costs to prosecute a claim they would not have to typically pay in the court system (for example, a plaintiff does not have to pay a judge but does have to pay the arbitrator, which can be expensive). Many nursing home corporations and companies want this forum because it is confidential and there is no jury.

Nursing home companies get people to “agree” to mandatory arbitration by placing arbitration documents in long and complicated admission paperwork. Most people have no idea that they sign this document.

Mandatory arbitration “agreements” used to be illegal in New Jersey. When a person is doing nursing home admission paperwork, they are typically under great stress. The admission process of placing a loved one in long term care is emotional, and a close reading of complex legal documents is not typically primarily on a person’s mind at admission – their mom or dad is.

However, recent cases have changed the law and now these documents are enforceable. While these “agreements” are typically not a requirement for admission, this is not explained to people. They usually do not know one exists until there is a problem.

A bill was recently proposed to make mandatory arbitration illegal – once and for all. The bill is called the Arbitration Fairness Act of 2013. You can find information about it at: http://www.takejusticeback.com/node/164.

This law is a great idea and an effective fix to this problem. If a person wants to arbitrate a claim after an injury, they always have that right. No one should be forced to sign a document waiving their right to a jury trial before anything has happened. A quick call to your congressperson in support of the law is an easy way to help effectuate this important change.

Life Care Centers Accused of Bilking Medicare

David Cohen — Wed, 08 May 2013 16:03:46 -0500

Here’s a copy of the lawsuit referenced in the recent CBS News Piece on the lawsuit that the United States has brought against Life Care Centers, accusing them of inappropriate Medicare billing practices.

LPN at Golden Living Charged with Stealing Drugs from Patients

David Cohen — Wed, 01 May 2013 14:54:48 -0500

Sadly, this is not the first time we’ve seen this problem in a nursing home. In this instance, an LPN has been accused to taking medications away from patients. It is not clear from the article, as least at this point in the investigation, as to why the nurse was doing this. In the past, we have seen situations wherein nurses were either selling or using the drugs. Either way, this is a horrible situation for the nursing home residents.

For more information, click here.

Recent Study Showing Extreme Dementia Costs Met With Government Brain Initiative

Michael A. Brusca — Fri, 05 Apr 2013 08:59:22 -0500

Many of our cases involve elderly people who suffered from dementia. We see, first hand, the emotional toll this disease can take on an individual or family. However, a recent study reported by the New York Times has now estimated the financial toll of dementia – at around $109 billion. By comparison, total costs for cancer were $77 billion.

The costs for dementia will grow as our elderly population grows. The article reports the study projects dementia costs to double by 2040, to a range of $379 to $511 billion.

Fortunately, these costs have been noticed by the government. This week the president announced an ambitious initiative to map the human brain. You can read the full PBS article here.

According to the article, it is hoped that this measure “will give scientists the knowledge to cure diseases like Alzheimer's.”

Prescription of Megace to Nursing Home Residents Linked to Fraud and Horrific Corporate Irresponsibility

David Cohen — Mon, 01 Apr 2013 15:03:46 -0500

In one of the worst examples we have seen involving the abuse of the elderly, a company whose product was only approved to promote weight gain for HIV patients started to aggressively promote Megace to frail and elderly nursing home residents when the HIV population began to dwindle. Knowing the dangerous side effects of this supplement (ie death), this represents a tragic example of profits over people. To read more, click here.

Study Finds Isolation Increases Risk of Death in the Elderly

Michael A. Brusca — Wed, 27 Mar 2013 14:11:29 -0500

Helen Keller famously stated, “Walking with a friend in the dark is better than walking alone in the light.” Maybe she knew then what scientists are proving now. The BBC reported a new study in the UK that found social isolation increases risk of death in older people, even when those elderly do not consider themselves lonely.

You can read the full article here.

The risk is substantial – there is a 26% higher death rate for isolated seniors over seven years.

When you have someone in an assisted living facility or nursing home, be sure that the facility is taking care to help residents participate in meaningful group activities when possible. Those social interactions may be more than pleasant, but also healthy.

Golden Living Designated as a Special Focus Facility

David Cohen — Tue, 05 Mar 2013 08:32:22 -0500

Lancaster ratings reveal that while some facilities have improved their standings, Golden Living is now one star and has been found to have a history of poor care. To read more, click here.

Assisted Living Facility Refuses Potentially Life-Saving Medical Care

David Cohen — Mon, 04 Mar 2013 16:26:21 -0500

Claiming that it was corporate policy, an assisted living facility refused to provide medical care that might have saved a woman’s life. This is an example of corporate disinterest in the safety and welfare of the elderly. To read more, click here.

Stark & Stark Shareholder in Nursing Home Litigation Group Published in New Jersey Law Journal

Stark & Stark — Mon, 04 Mar 2013 14:05:45 -0500

David R. Cohen, Shareholder in Stark & Stark’s Nursing Home Litigation Group, authored the article, Estate Planning & Elder Law: Manning the Minefield of Long-Term Care Regulations, published on February 25, 2013 in the New Jersey Law Journal.

The article discusses how estate and elder law attorneys can help families ensure the safety of their loved ones through helping families plan, appreciate and understand the impact of New Jersey’s regulations on residential institutional health-care facilities. Mr. Cohen explains the trends impacting long-term care residential facilities, as well as the challenges facing attorneys when wanting to advise their clients.

Mr. Cohen states, “Understanding the complex regulatory schemes that govern these facilities is only one piece of the puzzle. Attorneys need to advise their clients that under any circumstance in which their rights are violated, New Jersey provides a right of recovery, either through common law or statute.” He goes on to explain, “Having a familiarity with the panoply of rights that New Jersey offers residents (and their estates) can help in identifying cognizable claims that can be handled by litigation attorneys who concentrate in this area.”

To read the full article, click here.

Researching Nursing Home Ratings and State Inspections

Michael A. Brusca — Thu, 28 Feb 2013 11:43:03 -0500

If you are currently faced with placing a loved one in a nursing home or rehabilitation center, it is critical to obtain as much information as possible on the facility. This can be challenging when the residency is sudden or not expected – for example if mom or dad has a fall at home and is injured.

A good place to start your search is the U.S. News and World Report nursing home ratings for this year. The ratings are based on a 5-star scale that reflects how the facility performed during its last state inspection. The list begins with the 5-star facilities listed alphabetically, followed by the 4-star facilities listed alphabetically, and so on. You can see the results here.

If you already have someone in a nursing home, you can see how your facility performed. If the facility did not do well, you can ask the Administrator or Director of Nursing what the problems were and what the facility is doing about the deficiencies. It is a great way to be an advocate.

Toning Shoe Injuries and the Elderly

David Cohen — Wed, 16 Jan 2013 08:42:56 -0500

We have noted on this blog that toning shoe injuries have become a major problem for the elderly – many of whom have fallen prey to what many consider to have been fraudulent advertising practices. The Federal Trade Commission has charged Sketchers with making false claims about the benefits of these shoes and the company has set up a $40 million fund to refund consumers who have been swindled by these practices. Click here to read more.

More importantly, many folks have been seriously injured simply by wearing these shoes. We are seeing stress fractures, tendon injuries and falls, especially for elderly consumers, who have suffered broken hips and other injuries after attempting to balance themselves on these round bottomed shoes.

People who have been injured have recourses available and should explore their rights against companies who profit off of innocent consumers with claims that clearly were not medically founded.

Nursing Home Audits and Medicaid Fraud

David Cohen — Mon, 14 Jan 2013 11:12:40 -0500

I recently read an interesting article that involved concerns expressed by the Long Term Care Industry over massive audits being conducted for a number of Pennsylvania Nursing homes.

Though it can certainly be appreciated why the enormity of the task can be daunting, as these facilities must make available an enormous volume of records, the context of these audits can’t be ignored. The US government has released studies suggesting that $100 billion is lost every year by taxpayers on waste, fraud and abuse of Medicaid/Medicare funds. Any and all efforts to stop this bad conduct should benefit everyone and bring the focus on the healthcare debate into an area that simply has not had enough attention.

In our own practice, we have exposed significant abuses in billing, including billing for treatment of nursing home residents when they weren’t even in the building, to charting that they provided and billed for care to residents who had already died. We have exposed owners for including in their Medicaid budget family members as employees who never show up for work, with many of these same owners reporting to the government that they personally worked for 4,000 hours in a year – when it is clear that this hasn’t happened.

The long and short of this analysis is that sadly many good nursing home owners must participate in this arduous process to help the government weed out and expose the few bad apples who simply refuse to place the welfare of their own residents over their own desire to increase profits – even when those profits come from fraudulently taking money from us, the taxpayers.

The U.S. Department of Labor files Civil Contempt Claim against Broadway Healthcare and Broadway Nutritional Services

David Cohen — Fri, 11 Jan 2013 14:40:02 -0500

The United States has alleged that Broadway made efforts to avoid compliance with a 2009 consent order (i.e. a judicially approved agreement) to properly pay overtime wages to caregivers at ten (10) of their nursing home facilities – including Teaneck Nursing Home and Manhattanview Nursing Home. Instead, it is alleged that Broadway teamed up with Prime Services of Brooklyn and wrote two (2) separate checks to employees who worked overtime so that neither check would reflect more than 40 hours in a given week. It was by this means that they allegedly avoided having to pay overtime.

For more information, click here.

Evidence Shows Rise in For-Profit Nursing Homes Equals Rise in Fraud and Abuse Charges

Michael A. Brusca — Wed, 02 Jan 2013 16:06:33 -0500

A recent article reports a new study of government data conducted by Bloomberg News which shows that the rise in for-profit nursing homes correlates with a rise in waste, fraud, and abuse charges. The article cites findings that “profit motive is having an outsize affect on quality of care”.

This is a tension we have seen many times in our own cases. The highest cost to a facility is staffing. It is often the most important factor for quality of care as well. In some for-profit facilities staffing is cut to bare minimum requirements of the state in order to boost profit.

An important question to ask of an administrator or director of nursing when considering admission at a facility is “What drives staffing levels?” If it is solely meeting the state minimum requirements, this may be serious cause for alarm. Staffing levels should be driven by the resident’s needs, not by meeting some minimum state requirement.

The article also cites numerous examples where pointless treatments were done in order to bill Medicaid. You can read the full article here.

Toner Shoes Cause Significant Injuries

David Cohen — Thu, 27 Dec 2012 11:24:02 -0500

We have written in this blog in the past about the significant dangers of toner shoes. These shoes, marketed by many different companies, can potentially cause various injuries to innocent consumers. These shoes are marketed as allowing consumers to obtain significant health and orthopaedic benefits simply by wearing the shoes, without the need of any additional effort. There are now significant, well-documented questions being raised about the so-called science behind these shoes. While the benefits claimed by the simple act of wearing toner shoes seem quite unlikely, many consumers find themselves taken by the highly priced advertisements of these large companies. Beyond injuries that we have seen in our elderly population, we are now seeing young and middle aged individuals suffer unexplained stress fractures, which many experts believe are being caused by simply wearing these shoes. This is a very unfortunate situation and may, in fact, have been caused by the misleading advertisements from many large companies.

Whistleblower Suit Against Nursing Home Moves Forward

David Cohen — Wed, 19 Dec 2012 12:02:45 -0500

In yet another case involving allegations of robbing money from taxpayers while endangering the elderly, the federal government has joined a suit against a nursing home chain. If true, cases like these show how and why our health care costs continue to skyrocket. Healthcare fraud is one the biggest issues we face in dealing with the healthcare crisis.

To read more, click here.

Federal Judge Calls Nursing Home Company to Task - Orders Reinstatement of Workers

Michael A. Brusca — Tue, 18 Dec 2012 16:24:51 -0500

HealthBridge Management, a nursing home company, was forced to take back workers who were on strike after a federal judge found the management company to not be negotiating in good faith. HealthBridge was imposing significant wage and benefit cuts before negotiations were deadlocked.

The New York Times stated that the strike began “after HealthBridge declared the negotiations deadlocked and then imposed changes that included freezing the workers’ pensions, requiring many to pay at least $6,000 more a year for family health coverage and eliminating six paid sick days and a week’s vacation for many workers.”

You can read the full article here.

We find that in troubled facilities, problems are generally caused at the ownership and management levels rather than level of the individual worker. The ownership and management levels are where the staffing quantity and quality decisions are made. Like any other workplace, a stressed facility creates unhappy workers; in a nursing home or assisted living facility, this can have an impact on resident care. Many times, individual caregivers are doing the best they can with what they are given. When this is inadequate, residents can suffer severe consequences.

Potentially the Largest Claim of Medicare Fraud in US History

David Cohen — Fri, 14 Dec 2012 12:34:14 -0500

A large dialysis company, DaVita, Inc, has been accused by a physician of defrauding the US government - and ultimately, taxpayers, by intentionally wasting huge amounts of medication in order to increase their bills. If true, this may prove to be the largest case of its kind in US history. DaVita is already reported to have paid a $54,000,000 settlement for a similar claim made in Texas.

Regardless, what IS clear is that across the country, one of the greatest costs of healthcare is in fact payments made for fraudulent bills and fraudulent treatment.

To read more, click here.

Department of Justice Joins Lawsuit Against Nursing Home Operator

Michael A. Brusca — Tue, 11 Dec 2012 13:57:42 -0500

In a disturbing case, the government has joined a civil lawsuit against a nursing home operator that was run so poorly, that the allegation is that the money Medicare and Medicaid paid for services was "effectively worthless."

You can read the article here.

The lawsuit alleges that money was not going to serving the residents, and that money was squeezed out by things such as rationing towels, garbage bags, laundry bags, medical tubing and oxygen bottles. The administrator of the facility is alleged to have bought snacks with her own money.

The cost to the residents in this facility came in the form of pressure ulcers, falls, dehydration and malnutrition.

Unfortunately, this is a pattern we have seen many times. In order to maximize profit, nursing home and assisted living companies cut corners to generate profit. Unfortunately, some of the corners they cut are not obvious to residents and their families until someone is admitted for a period of time. For example, staffing levels are kept to the bare minimum levels to boost profit. In turn, we see the same problems cited in the article.