DO YOU SUSPECT ABUSE OR NEGLECT? Contact Us for a Free Consultation

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A Northern Kentucky nursing home just reached an agreement with the U.S. Attorney’s office to pay a substantial settlement for false Medicare and Medicaid claims filed over the past decade. While this case concerns a nursing facility in Kentucky, it may have a significant impact on nationwide lawsuits under the False Claims Act (FCA) and nursing home issues in California.

According to a local ABC News article, the settlement requires that the owners of the health care facility pay the U.S. Government $350,000 in damages and that they retain an independent compliance consultant to ensure that these crimes are not repeated in the future. Lexington’s local news station, WTVQ, reported that this case represents the first lawsuit in Kentucky accusing a nursing home of violating the FCA by defrauding Medicaid and Medicare.

What is the False Claims Act and How Does it Relate to Nursing Home Abuse?

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For quite some time, elder-care advocates have encouraged federal legislation that would require certain long-term care measures for older adults. However, a recent article in the New York Times referred to this legislation—the Community Living Assistance Services and Supports (CLASS) Act—as a victim of the recent fiscal cliff deal in Congress. In short, the CLASS Act was repealed. What does this mean for nursing home and other residential care programs? Very likely, long-term care will remain available only through private long-term-care insurance in the near future. Are you considering long-term care insurance? Or do you have a loved one who may require nursing home or other residential care? You’ll want to have a clear idea of what the end of the CLASS Act means for you and your loved ones. 450px-Walker_extended.JPG

History of the CLASS Act

The CLASS Act was originally conceived by Senator Edward Kennedy in the mid-1990s. Elder Law Answers explains that Kennedy’s proposed long-term care plan would allow employees to pay a small premium, approximately $65 per month, which is much lower than the average cost of a private long-term care insurance plan. For participants who had contributed for at least five years and worked for at least three of those years, they would become eligible for benefits of at least $50 per day.

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If you have a loved one in a nursing home who has been diagnosed with dementia, you may want to read closely. A recent article in The Tennessean reported that antipsychotic drugs are being overused in nursing homes and assisted-living facilities, particularly for patients who have been diagnosed with dementia. While we don’t immediately think about medication practices when considering nursing home abuse, widespread antipsychotic drug use in certain nursing home patients is startling.

How Widespread is ‘Off-Label’ Use?

State statistics vary for nursing home use of antipsychotics. In Tennessee, nearly 30 percent of current long-term nursing home residents receiving care are treated with antipsychotic medications, while the national average is still a large 23.8 percent. The Hartford Courant recently reported that a local Connecticut nursing home was found prescribing antipsychotic drugs to two-thirds of its long-term residents without medical diagnoses that would require the use of these medications. This is called “off-label” use, and some health officials worry that dementia patients are being treated with antipsychotics to control their erratic behavior “instead of treating their dementia symptoms through non-pharmacologic therapy.”

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A recent U.S. News & World Report article noted a post-holiday increase in elder care inquiries. During the holiday season, visits with families and loved ones can leave us with “the realization that an aging relative is losing the ability to live independently.” A family expert with the AARP noted that the spike in these inquiries often begins in January and can extend into the following winter months. In fact, seniorhomes.com, a website providing resources for senior living in your area, reported a 58% jump in elder care inquiries just after the holidays came to a close.

Although an assisted-living facility or nursing home may not always be the immediate solution to the problems that your loved one faces, you want to make sure you’re doing your due diligence. Oftentimes family members don’t know their options, and they are quick to assume that an elderly loved one in need of some assistance has no choice but to move out of their home and into a residential facility, such as an assisted-living facility or nursing home. If the post-holiday season has left you wondering if your elderly parent may need additional care, there are some important “Dos” and “Don’ts” to follow.

Familiarize Yourself with Local Elder Services

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For the past several years, there has been significant discussion about the consequences of changing American demographics. More specifically, the American population is aging at a very steady rate. As the Baby Boomer generation reaches retirement age, the percentage of the population over 65 steadily rises. In fact, according to some estimates, the fastest growing segment of the population are those over 65 years old. The U.S. Census Bureau estimates that in the next fifteen years, the percentage of the population that is over retirement age will double from where it now stands. It is hard to underestimate the long-term consequences of this demographic shift.

For example, the aging of the population has significant effects on senior care. More and more community members need close care, and there are concerns about the availability of caregivers. There are only a limited number of nursing home and assisted-living facilities. Even still, many seniors would rather not move into those spaces where possible, and so there has been a surge in seniors who move in with family members or close friends.

Sadly, as outlined in a recent CBS 8 story, the growing need for senior care has been followed by a rise in complaints about elder abuse–perpetrated both at skilled nursing facilities and in at-home care settings. One way the increase has been noted is by the rise in elder abuse shelters.

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The Marin Independent Journal reported in a recent article that Marin county health officials are administering free flu shots to nursing home employees. The article indicates that this action is in response to the results of a recent health survey indicating that vaccination rates for the residents of nursing facilities is high, but the employee vaccination rates are quite low.

This report should probably evoke a head scratch or two because of the simplicity of the study and solution. It makes no sense why the employees are not getting flu shots. Nursing home employees handle the residents’ food, medication, linens, utensils, garments, etc. The employees are in constant contact with the residents and their possessions; therefore, germs are almost certain to spread. It is surprising that it took a study to conclude that vaccinations need to be freely given to, if not required of, nursing home employees.

Public Health Officer, Dr. Matt Willis, stated that, “The elderly are our most vulnerable population when it comes to complications from influenza.” Elderly people often have weakened immune systems, so a case of the flu is potentially deadly.

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Assembly Bill 40 is a California law that took effect January 1, 2013. The bill is intended to expand reporting requirements related to elder abuse.

The Napa Valley Register reported in an article that the Napa County Health and Human Services department investigated 370 abuse and neglect cases in 2012. 295 of those involved seniors and the rest involved disabled adults. Reports of theft and embezzlement from the elderly have significantly increased over the last couple of years.

In light of this new bill, it is important to look at the increase in reported instances of abuse and neglect in different ways. A simplistic view of this increase indicates that elder abuse and neglect is on the rise. Whatever measures have been put in place to combat abuse over the last couple of years have failed.

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Gwen D. Hughes, a former California nursing home director, was sentenced on Wednesday to three years in state prison for inappropriately medicating patients at a Kern County nursing home. The San Francisco Chronicle reported that Hughes was originally charged in the deaths of three patients. Hughes however pleaded no contest in October to one felony count of elder abuse with a special allegation that the abuse contributed to the victim’s death, according to the article.

Hughes was working as nursing home director at Kern Valley Healthcare District’s facility in Lake Isabella at the time of the alleged crimes. California Department of Justice officials, including Attorney General Kamala D. Harris, allege that Hughes ordered the director of pharmacy to write doctor’s orders for psychotropic medication for 23 patients.

The prescriptions were not written for health or therapeutic reasons, but instead written to “keep them quiet” says the article. The Justice Officials allege that the psychotropic drugs were given to patients who were “noisy, prone to wandering, who complained about conditions or were argumentative” according to the article. This is clearly an example of nursing home abuse.

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According to the Orange County Register, local officials believe that a 28-year-old Riverside resident named David Moreno may have assaulted numerous victims while working as a maintenance worker at Emeritus Senior Living in Yorba Linda. Officials are asking if anyone has information regarding the matter, to please contact the Orange County District Attorney’s Office.

Moreno is already facing a felony sexual battery on an institutional victim charge and a felony sexual penetration by a foreign object of an incompetent victim charge. These acts allegedly occurred in June or July of 2012 when Moreno went into the room of a resident suffering from dementia.

Moreno plead guilty and is free on a $100,000 bail.

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One of the rights addressed in the Nursing Home Residents’ Bill of Rights relates to the Quality of Life in the nursing home. An individual’s quality of life should not be diminished because he or she resides in a nursing home. Now, an individual’s opportunities to engage in all of the typical social activities in the community might decline because of health related issues, but the individual must still be permitted to engage in activities within the nursing home and community that he or she is medically and financially able to engage in.xmasinnursinghome.jpg

There are a couple of specific clauses addressing the quality of life in nursing home:

A resident must be allowed to choose and participate in activities that he or she likes provided that the activities are part of his or her plan of care. (HSC 1599.1(d): 42CFR 483.15(b)(1). Clearly the nursing home medical staff will have a say in which activities a resident participates in especially if the activities involve physical activity. The nursing home has a duty to care for the residents and ensure their safety so there is some limitation on activities. However, residents cannot be forced to engage in activities that they do not wish to engage in.

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