Privacy and Nursing Home Surveillance

In recent months, with revelations concerning consumer credit card theft and the National Security Agency surveillance programs, the notion of privacy has again entered the public consciousness. Now seems like a good time to discuss the debate that continues over privacy and surveillance in the world of long-term care facilities. Unfortunately, abuse and neglect occur far too often in nursing homes and assisted living facilities and, in an attempt to protect loved ones, families are turning to technology. Small, sometimes hidden, cameras, often referred to as “granny cams,” are becoming increasingly popular as families and governments seek to ensure proper care.

In a New York Times article last November, Jan Hoffman recounts the story of a nursing home resident, Eryetha Mayberry, from Oklahoma City, Oklahoma. Ms. Mayberry and her family had noticed a few personal belongings go missing and installed a hidden camera in an attempt to catch a thief. When Ms. Mayberry’s daughter finally watched the footage, however, she was astonished and horrified by what she discovered. Staff members had been abusing her mother.

As a result of the outrage that arose following the discovery of Ms. Mayberry’s abuse, Oklahoma became the third state to explicitly allow surveillance cameras to be used in the rooms of residents of long-term care facilities. New Mexico and Texas are the other two states that have passed similar legislation. Although New York has passed no specific legislation allowing individuals to maintain surveillance cameras in their rooms, the government, specifically Governor Andrew Cuomo and the Medicaid Fraud Control Unit, has been using hidden cameras in nursing home investigations throughout the state.

In March of 2010, then-Attorney General Cuomo reported that 22 arrests had been made after investigations into Northwoods Rehabilitation and Extended Care Facility in Troy, NY and Williamsville Suburban Nursing Home in Amherst, NY. Surveillance footage played key roles in both investigations, revealing instances of alleged neglect and conduct endangering residents.

Proponents of video cameras understand that, without surveillance, much of the abuse and neglect that is occurring may never be discovered. In addition to uncovering instances of mistreatment, many hope that cameras, coupled with posted notices of surveillance, will prevent abuse and neglect from occurring in the first place.

However, nursing home surveillance has encountered opposition. Opponents claim that these cameras are an invasion of privacy. A frequently used argument against the use of cameras is that the monitoring infringes not only on the rights of a loved one, but also the rights of fellow residents. Cameras may catch residents during their most intimate moments, such as when they are dressing or undressing. Some nursing home operators also believe surveillance may reduce staff morale, claiming that it may become more difficult to hire and retain caretakers if they constantly feel threatened by the monitoring of video cameras (CNA’s Cost and Benefits of Video Surveillance).

These arguments against video monitoring may be valid. But is slightly less privacy worth the potential reduction in abuse and neglect, along with the peace of mind gained by residents and their families? With the right rules and regulations, I think so.

Medicare and Medicaid Fraud

I recently heard from a colleague from my days as a Bronx prosecutor that I had lost contact with for many years.  I was pleased to learn he was doing well and is in charge of a large division of the New York Attorney General’s office’s Medicaid Fraud Control Unit.  We got to talking and I realized that in all the years that I have been handling nursing home cases I have never reported a case to law enforcement that involved neglect and/or altered records.   I have had many cases where the aides are charting that they provided care when my client is in the hospital or when someone went back and tried to re-create the record to cover up the neglect.  I have really considered how criminal prosecution of these transgressions fit in with my representation of the victim.

As plaintiff lawyers, we must consider how the client’s case would be impacted by the involvement of law enforcement.  Will the facility withhold discovery because of a criminal investigation?  Will witnesses take “the fifth”?  If so, how will that impact a case?  I can see it as being helpful if a witness takes the fifth on a civil case.  On the other hand, a criminal conviction of individuals who work at or operate the facility would likely be very helpful to you case, including the pursuit of the punitive damages.

You might also consider involving an attorney or the Government in bringing a Qui Tam action if you suspect Medicare or Medicaid fraudulent billing.  It is my understanding that a Qui Tam action is one brought by a private individual on behalf of the Government under the false claims act found in the United States Code, Title 31, Section 3729, through 3733 (31 U.S.C. Section 3729-3733).  The Government may choose the join the action once notified.  If there is recovery, the whistleblower can receive 15-30% of the Government’s recovery.

To reach the Attorney General’s Medicaid Fraud Control Unit dial: 1 (800) 771-7755 and press “3” or feel free to ask for my former colleague Thomas O’Hanlon.    The link to a form on the Attorney General’s website to report Medicaid Fraud or patient/resident abuse and/or neglect is: http://www.ag.ny.gov/comments-mfcu

 

Dementia Standards of Care

I recently discovered the Alzheimer’s Association which has published “Dementia Care Practice Recommendations : Phase 1 and 2 that are applicable to assisted living facilities and nursing homes. Below is a link to their website which includes the details of Phase 1 and Phase 2.  There is an effort to have nursing homes and assisted living facilities subscribe to these care practices.  I would suggest that in a deposition, we ask whether the facility and/or agency follows these care practices and regardless of their answer, I would develop a line of questioning from these “care practices”  since they appear to be the best care practices for dementia residents.

http://www.alz.org/professionals_and_researchers_dementia_care_practice_recommendations.asp

 

Woman in Assisted Living Facility dies after being denied CPR

There is no legal requirement for licensed nursing staff to perform CPR; however, it is the Standard of Care in New York State among licensed nursing staff.

Authorities are launching a criminal investigation into the death of an 87-year-old woman who was denied CPR at a California independent living home by a woman who identified herself to a 911 dispatcher as a nurse – but the facility now says she isn’t one.

During the call last Tuesday, an unidentified woman called from her cell phone, and asked for paramedics to be sent to help Lorraine Bayless, who collapsed in the dining room of the independent living building in Glenwood Gardens in Bakersfield.  Later, a woman who identified herself as the nurse got on the phone and told dispatcher Tracey Halvorson she was not permitted to do CPR on the woman.

She said one of the home’s policies prevented her from doing CPR, according to an audio recording of the call.  ”In the event of a health emergency at this independent living community, our practice is to immediately call emergency medical personnel for assistance and to wait with the individual needing attention until such personnel arrives,” Executive Director Toomer said. “That is the protocol we followed.”

The harrowing 7-minute, 16-second call also raised concerns that policies at senior living facilities could prevent staff from intervening in medical emergencies. It prompted calls for legislation Monday to prevent a repeat of what happened at Glenwood Gardens.

“This is a wakeup call,” said Assemblywoman Mariko Yamada, chair of the California Assembly Aging and Long-term Care Committee. “I’m sorry it took a tragedy like this to bring it to our attention.”

In New York State we have the Assisted Living Reform Act (“ALRA”) with corresponding regulations. In reviewing both New York State regulations and ALRA, I was unable to find a requirement that CPR be performed.  There was a proposal submitted by the Department of Health for a licensed registered nurse to be on staff 24 hours a day at assisted/independent living facilities; however that proposal was successfully challenged and there is still no requirement in place.  Had such a regulation been effective, then that staff member would have been in a position to perform CPR.

Below is a link to the article:

http://www.foxnews.com/us/2013/03/05/spokesman-says-woman-who-refused-to-give-cpr-to-dying-87-year-old-wasnt-nurse/

A loved one has been diagnosed with Alzheimer’s disease. Now what?

A loved one has been diagnosed with Alzheimer’s disease. Now what?
It is estimated that about five million Americans suffer from Alzheimer’s disease, and about 360,000 people are newly diagnosed every year (Alzheimer’s Foundation of America). Receiving a diagnosis of Alzheimer’s disease or some other form of dementia can be devastating news to the individual and their family. As Alzheimer’s progresses, the physical and mental demands on the caregiver can gradually become overwhelming. Usually, as time progresses more supervision and assistance is needed, often to the point where the care needed exceeds the caregiver’s capacity. It is at this point that many families will be faced with the difficult decision whether to place their loved one in a long term care setting. It is a difficult and emotional task that even in the best of circumstances can be a wrenching decision for the entire family. The goal of this article is provides some suggestions on what you should do if you are faced with that decision. Continue reading

Decisions

One of the most difficult decisions a family may have to make is to decide whether to put a loved one in the care of a nursing home. Today approximately 1.6 million elderly and disabled Americans are cared for in nearly 17,000 U.S. nursing homes. According to the Health Care Financing Administration (HCFA), which administers Medicare and oversees the state Medicaid programs, nursing homes care for about one in 20 Americans over the age of 65. As the percentage of our population over age 65 increases, the percentage of elderly people entering nursing homes will likewise increase. Continue reading