Attorney General’s Hidden Camera Investigation Leads to Arrests

Two days ago, Attorney General Eric Schneiderman announced that another hidden camera investigation has resulted in the arrests of nursing home employees. Two certified nurses’ aides, who worked at Erie County Medical Center Skilled Nursing Facility (also known as Terrace View Long Term Care Facility), were arrested and charged with “Falsifying Business Records in the First Degree (class E felony), Endangering the Welfare of an Incompetent or Physically Disabled Person (class A misdemeanor) and Willful Violation of Public Health Laws (unclassified misdemeanor).”

According to video footage, the CNAs, Donna Laury and Nakeia Green, allegedly neglected to follow a 79-year-old resident’s personal care plan, “failing to use two people when performing incontinence care and failing to use a mechanical lift to transfer the resident.” The employees are accused of falsifying documents to cover up their alleged neglect.

Due to Alzheimer’s disease, dementia and the inability to get around on her own, the 79-year-old resident relies on nursing staff to assist with daily activities. Many nursing home residents are in similar situations, where their well-being depends on the care of others. While many residents do receive the care they need, there are many instances, including this one, where caretakers are neglectful or abusive, and do not provide proper care. What is it about the culture of a facility that lends itself to this type of behavior?  And is it evidence of a systemic problem?

Do Staffing Levels Affect Quality of Care?

Back in January of 2006, the Office of the Attorney General released a report titled “Staffing Levels in New York Nursing Home: Important Information for Making Choices.” This report, although dated, has some interesting information regarding nursing home staffing levels in New York State, as well as recommendations to consider when searching for a nursing home.

While there are multiple factors that determine the quality of care in a nursing home, staffing levels are an important one. The number of hours of care provided to a resident and quality of care show “a strong relationship.” In New York State, staffing levels in a nursing home are usually measured in “the average number of hours of daily care that staff members provide each resident of the home.” This measurement is commonly referred to as “hours per resident day,” and is “calculated by adding up the total number of hours worked by the nursing staff and dividing it by the number of resident-days during the reporting period.”

A study done by the Centers for Medicare and Medicaid Services (CMS) found that quality of care declined once staffing levels fell below three separate thresholds. Once the amount of care provided by Registered Nurses (RNs) fell below 0.75 hours per resident day (45 minutes), quality of care declined. If RNs and Licensed Practical Nurses (LPNs) together provided less than 1.3 hours per resident day (1 hour, 18 minutes), the quality of care suffered. In addition, quality of care started to decline when Certified Nursing Assistants (CNAs) provided less than 2.8 hours per resident day (2 hours, 48 minutes). These thresholds mean that any nursing home in New York must provide at least 4 hours and 6 minutes of total nursing care, for the quality of care not to suffer.

The level of care provided to residents also should take into account specific needs of residents. If residents have special needs, they may need additional care and a nursing home may need to employ additional staff. Additional care may be required when residents are pediatric, have suffered traumatic brain injuries, have AIDS, are on ventilators, are on respite care, or have behavioral needs. With any of these cases, additional care is necessary, and nursing homes must ensure that their staff can provide the necessary and proper care.

When considering which nursing home you or a loved one should choose, keep in mind that staffing levels are only numbers. The Office of the Attorney General also recommended prospective residents and their loved ones:

  • Visit the home and look around
  • Learn about the management and staff, including the level of turnover
  • Speak with caregivers
  • Speak with others who have experience with nursing homes, including knowledgeable professionals

These recommendations should be part of any nursing home decision.

Highpointe Employees Charged Following Hidden Camera Investigation

Continuing to make use of hidden cameras during investigations, Attorney General Eric T. Schneiderman announced charges against 17 employees of Highpointe on Michigan Health Care Facility in Buffalo, NY. The charges are based on video footage recorded by the Attorney General’s Office that allegedly reveals the neglect of a 56-year-old resident. According to the press release, “nurses failed to dispense pain medication and check on the resident,” and “aides neglected to check on the resident, failed to give him liquids and failed to perform incontinent care.” In addition, the video footage also revealed that the nurses and aides falsified documents to cover up their alleged neglect.

The resident of Highpointe, who had Huntington’s disease and was bedridden and unable to walk, was fully dependent on the facility’s staff. The Attorney General announced that his office “will use every tool in our arsenal…to ensure that nursing home residents receive the care they need and the respect they deserve.” Many residents of nursing homes, like the 56-year-old resident of Highpointe, do need someone to provide a watchful eye over their care. While the owners of nursing homes should be the ones to provide this oversight, many times, their lack of oversight adds to or causes neglect and abuse.

The Attorney General’s Office continues to demonstrate that it will be a watchful eye in nursing homes. In a previous blog post, I wrote about surveillance in nursing homes, and the Attorney General’s Office’s use of hidden cameras back in 2010. With advancements in technology, it is arguably becoming easier to oversee the care provided in long-term care settings. I am hopeful that the Attorney General’s commitment to oversight, coupled with his office’s willingness to use technology, will set an example for nursing home owners and the public throughout New York State.

State Rankings Paint Inaccurate Picture of Quality of Care in Nursing Homes

Previously, I blogged about the ongoing saga of Medford Multicare Center for Living, located on Long Island. A lawsuit, the highlight of which is the death and alleged cover up of an elderly woman at Medford, was filed by New York State Attorney General Eric T. Schneiderman. The Attorney General claims there is a history of neglect and mistreatment at Medford. These accusations are surprising because recent state rankings of the nursing home don’t reflect these claims of poor treatment.

According to two Newsday articles (one by Ridgely Ochs and Chau Lam and the other by Joye Brown), Medford Multicare Center for Living received an overall ranking of 3 out of 5 stars on a federal website, Medicare’s Nursing Home Compare, that provides detailed information about Medicare and Medicaid-certified nursing homes. Last year, the nursing home received a ranking of 4 out of 5 stars for health inspections and quality of care. If the Attorney General’s allegations are true, this average ranking in no way reflects the quality of care at Medford.

New York State’s Department of Health conducts inspections, collecting data used to rank nursing homes throughout the state. However, nursing homes themselves gather and report the statistics used for ranking. This data is not required to be reviewed, so the is no way to determine its accuracy. This self-reporting creates a conflict of interest that can lead nursing homes to inflate or even completely falsify the data they report.

In her Newsday article, Joye Brown quotes Charlene Harrington, a professor of nursing at the University of California, San Francisco. Harrington explains, “The rating system is based on three things: First, deficiencies: If those aren’t issued properly, then you can’t rely on that. Second, staffing: Nursing homes can gin up those numbers when they suspect surveyors are coming. Third, they can falsify quality measures.”

According to a paper by the Kaiser Commission on Medicaid and the Uninsured from 2013, the Affordable Care Act requires nursing homes to increase their transparency. The Centers for Medicaid and Medicare Services (CMS) has already implemented a number of new requirements, including improving the collection of data on owners and managers and providing links to health inspection reports. However, other important provisions have not yet gone into effect.

With the Attorney General’s surprising allegations, it may be time to rethink the way we assess and present the quality of care and safety at nursing homes. The public relies on these ratings to make difficult decisions for themselves and their loved ones. Verifiable data needs to be easily accessible and used in the ranking process, so ratings represent the truth about nursing homes throughout New York State.

Medford Multicare Center Investigation Leads to Arrests

Nine people have been arrested after an investigation by the state attorney general’s office into Medford Multicare Center, a nursing home located on Long Island, according to an NBC New York article. Kethlie Joseph, an employee of Medford, was charged with criminally negligent homicide in the death of 72-year-old Aurelia Rios, a former patient of the nursing home. Ms. Rios died after becoming disconnected from her ventilator. Aides neglected to respond to an alarm that sounded every 15 seconds for over two hours.

Six other employees, including the administrator, David Fielding, have been charged with participating in the cover up of the death. New York Attorney General Eric Schneiderman released a 58-page civil complaint stating there had been a “history of neglect of Medford’s most vulnerable residents.” Two additional employees have been charged with falsifying documents regarding injuries to other patients at Medford.

Falsifying records and covering up incidents are recurring problems in nursing homes. Many times these incidents go undiscovered. In a previous blog post, I mentioned the state investigation into Northwoods Rehabilitation Facility in upstate New York. These investigations are a step in the right direction, but more needs to be done to protect the rights of loved ones in nursing homes. If you believe a loved one has been the victim of abuse or neglect, contact a lawyer immediately.

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