New Owners Say Facility’s Downgraded Rating Is Due to Residents Now Getting Better Care—True? or False?

The new CEO and vice president of the company that recently took over a healthcare facility in Queensbury have an interesting dilemma regarding their method of operating and caring for the residents. It seems that the facility was downgraded from four stars to one star last month, and the reason being given is that the residents are now receiving the care they needed, but was ignored by the previous owners.

The two company heads explained that the old facility would not accept residents with more complex health issues, like tracheotomies, severe bed sores, and a myriad of other more serious issues requiring more intense care and also more staff. Under the new ownership, new residents are sicker, but they are not turned away and they are getting better because of the better care they receive.

Another reason the two officials believe care is improving is that the company has very strict policies and procedures—they described it as a “by-the-book” approach that equips and trains employees to be able to provide a higher standard of care. They assert that their employees are able to respond to a broad range of illnesses, help residents manage their pain and depression, and they are trained to observe, measure and treat residents with bedsores. The officials in a meeting with The Post-Star editorial board said they have uncovered numerous problems with many of the longtime residents. These problems had not been noticed and treated before.

Explaining further, the officials reported a lack of screenings for depression, pain and other issues. How this lack of screening affects the rating is that when a facility reports that they have a resident who is in pain, it hurts the facility’s rating. Yet, on the flip side, when illnesses are resolved, the ratings improve.
The two facility officials said that most of the time when they take over a facility, there is an initial increase in the number of residents experiencing depression. However, they were quick to add that their residents were not more depressed; but rather, it means they are being treated.

Although the new CEO asserted that the nursing home’s ratings would improve as they implement their effective care approach, it should be noted that this company owns many facilities in the area. Some of these area facilities have been owned for three or more years and all currently have one star ratings.
This company has a history of receiving poor inspections, some of which were considered dangerous to the health and safety of the residents. A recent inspection at this newly acquired facility involved insufficient staffing and the serving of food.

The two officials were adamant that there were no problems with staffing. They report that they have from six to eight CNAs on the day and evening shifts and four CNAs at night.
The Director of Nursing does admit that at times it is difficult to have sufficient staff, and she said that the company is working to make it easier for new staff to relocate and work at the facility. She explained that the company frequently purchases a house that new employees can share, and sometimes the company houses new employees in a hotel. In both cases, the company does not charge for this housing and the new employees usually will live there for three to six months.

High Hospital Readmissions Continues to Be Penalized by Medicare

Healthcare Compliance Perspective:

Repeated hospital readmissions based upon systemic issues may provide the OIG with the basis to allege false claims and initiate an audit.

Nearly as many hospitals across the country are being penalized by the Centers for Medicare & Medicaid Services (CMS) this year as last year. A total of 2, 573 hospitals will experience cuts in reimbursements by up to 3 percent for 2018. The reason behind these cuts is the concern over patients being hospitalized too soon after being discharged. These penalties have been occurring for nearly six years, and are considered to be contributing to the reduction in the number of repetitive hospital admissions.

The cost of readmissions is just one aspect connected to repeated hospital admissions. There are significant risks associated with readmissions-infection and complications endanger the patient and increase costs.

Hospital readmissions are also a concern for skilled nursing homes, and this is also viewed by CMS as a large problem. Research from 2010 is still being used by CMS regarding this issue. This research indicates that out of every four patients “discharged from an acute care hospital to a skilled nursing facility, one will be readmitted within 30 days.” There are less readmissions when patients are discharged to their homes than when they are discharged to a nursing home.

CMS is approximating that these penalties will result in government savings of about $564 billion.

Massachusetts Parties Reach Settlement in Wrongful Termination/Retaliation Suit Against Nursing Home

A woman who worked as a CNA, accused her employer, a New Bedford, MA healthcare center of retaliating against her for her reporting an incident of resident abuse in the facility where she was working. The woman claimed that she was working during the 11 p.m. to 7 a.m. shift on the weekend of Jan. 7-8, 2006, when she saw a nurse and another CNA improperly restrain two residents in their wheelchairs by tying sheets or blankets around them. The woman said that she had been trained to report abuse to her immediate supervisor; but, in this instance, the immediate supervisor was the nurse who was perpetrating the abuse. So, to effectively report what she had seen, the woman needed to report directly to the facility’s administrative staff. However, it was the weekend and there were no administrative staff available. Consequently, the woman claims that at her earliest convenience, she left a telephone message for the Director of Nursing early on Monday morning. She also enlisted the help of a fellow CNA to document the incident by taking down a written statement that was provided to the healthcare center and then forwarded to the Massachusetts Department of Public Health.

The woman also alleged that the Center was aware of the report, but did not take action until a Shift Supervisor/Nurse witnessed a similar incident the evening of Jan. 9-10, 2006 just a day or so later. The woman asserted that she was told by the Center that she had not made her report of the resident’s abuse in a timely manner. The Center then tried to intimidate her with a document that falsely claimed she was the subject of an investigation by the Department of Public Health and the Center terminated her employment shortly after that.

The woman filed suit for retaliation regarding F221-Right to be free from Physical Restraints. In her suit, the woman claimed $50,000 in damages for lost wages, benefits and emotional distress. She also demanded treble damages and attorney fees. She further alleged that she was no longer able to receive treatment for emotional distress and had not been able to secure steady employment. To lessen her financial situation she has worked part-time housekeeping, collecting unemployment and social security benefits. The case was moved to the U.S. District Court of Massachusetts.

The suit was settled and the case was dismissed before jury selection began. The settlement details were not disclosed.

A Felony Conviction, But No Jail Time for Former Director of Nursing

Healthcare Compliance Perspective:

A false claim may result from knowingly misrepresenting services provided to residents as well as presenting false information to investigators from federal programs.

Earlier this week, a former Director of Nurses at a rehabilitation center was convicted of falsifying records, but was not sentenced to prison. Instead, she received a “conditional discharge.” One of the conditions of that discharge is that along with the felony conviction, the woman faces losing her nursing license, and she is disallowed from working for any healthcare program funded by the government.

The woman was charged with deliberately misleading an investigator from the Department of Health by providing a patient’s record that indicated the staff nurses had followed the patient’s care plan and monitored the patient accordingly. Unfortunately, the patient was not monitored as required and experienced repeated falls. A serious injury after one fall resulted in hospitalization and wound stapling to the patient’s head. Although the patient was able to be returned to the facility, his stay was cut short because he experienced “respiratory failure and pneumonia” after again being discovered “sitting on the floor.”

The trial lasted six days and even though it resulted in a conviction, the sentencing of conditional discharge reflected the court’s finding that the woman was not directly involved with the “patient’s neglect or injuries.”

Assisted Living Facility in West Duluth Settles Wrongful Death Suit

Healthcare Compliance Perspective:

A false claim may result from knowingly providing insufficient resources to ensure elopement risk prevention. Promises made to families are sufficient proof of knowledge and intent. Facilities must assess residents for elopement risk at time of admission, and document elopement prevention in the care plan, if needed.

The wrongful death suit filed by the family of a 74-year-old woman with dementia was settled without going to trial last week. In 2013, the woman, a resident at an assisted living facility, was able to wander away from the facility despite her family and the facility’s efforts to provide safe guards meant to ensure her safety. The woman’s disappearance was the impetus for a nine-month-long search by her family, facility staff and a concerned community. Her mummified remains were finally found next to a fence in a large local park.

Earlier this year, a judge determined that the woman’s death was due to her elopement from the assisted living facility. Consequently, the facility accepted responsibility for her death and agreed to a settlement with the woman’s family. The terms of the settlement were kept confidential.

The woman had been diagnosed with several issues that included-“wandering, orientation issues, and self-injurious behavior.” The facility, at the request of the family, had attempted to implement a care plan that involved not allowing the resident to leave the facility without being accompanied by either a staff or family member.

In an investigation by the Department of Health, a facility employee revealed that the facility gave the family a false sense of security by implying they had a WanderGuard security system when they did not. The employee said that the facility had obtained a quote for putting the system in place, but they did not do so because it would have cost thousands of dollars. However, the health department did not issue any sanctions against the facility because there was some confusion about the woman being her own guardian at the time she left the facility.

Disability Discrimination in a Tennessee Nursing Home

A custodian at a Tennessee nursing home alleged that when the nursing home that was formerly operated by a government entity went private, the new owner of the nursing home unreasonably imposed a fifty pound lifting requirement that essentially eliminated employment for the custodian who, because of an on-the-job injury, was not allowed to lift more than twenty pounds.

The new owner required all the employees to re-apply for their jobs. In creating the custodian position, a fifty-pound lifting requirement was included as an essential function of the job.

Although the custodian had done well in his work for the previous owner, the lifting restriction now presented a problem. The custodian could not meet the new lifting requirement; so, he sought an accommodation from his employer, but the new owner would not make an exception. They took the position that the fifty-pound lifting restriction was essential, and there was no other position the custodian could fill. He was now out of work.

The custodian sued the new nursing home owner alleging that it engaged in disability discrimination in failing to accommodate him or even interact with him about the lifting restriction. The custodian noted that he could perform his duties effectively, and that he had done so for five years after his injury and before the privatization. Through his suit, the custodian sought back pay, emotional damages and the imposition of punitive damages.

The court’s liability instruction asked if the new owner discriminated against the custodian in violation of the ADA. The jury determined the answer was yes. He was awarded $ 38,206 in back pay plus $ 20,000 more for emotional distress. The jury answered that he was not entitled to punitive damages. The verdict totaled $ 58,206 and a consistent judgment was entered.

Fentanyl Poses a Responder Safety Concern for Healthcare Providers

Healthcare Compliance Perspective:

Compliance Officer needs to audit their provider’s policy/procedure for staff substance abuse incidents/accidents and ensure being followed as needed. Compliance Officer must then report findings to Compliance Committee.

Last week in Massillon, Ohio, news media reported that three nurses involved in the treatment of a patient who was believed to have overdosed on fentanyl, were incapacitated while cleaning up the patient’s room by “secondary exposure,” and had to be treated with Narcan, a drug used in cases of overdose on heroin and fentanyl.

Fentanyl is a powerful analgesic- 50 to 100 times stronger than morphine, and normally is used as a pain reliever for patients after surgery. It is another of the highly addictive opioids that are feeding the growing class of opioid drugs and the opioid epidemic spreading like wildfire across the country and throughout the world. Reports of opioid overdoses and deaths are making more and more news headlines.

Because of the drug’s deadly effects and the fact that it can be absorbed into the body by just inhaling; and, because it only takes a miniscule amount equal to a few grains of salt, fentanyl poses a real and present danger to healthcare providers, and others. Police in Harrisburg, PA, have recently stopped doing preliminary tests in the field to learn what substances they were dealing with; now, they send the substances straight to the lab.

There is not an easy fix for healthcare workers who are charged with rendering often life-saving procedures to patients; or, as in the case of the three nurses, just cleaning up a room.

Palm Harbor Oncologist Sentenced to Nearly Six Years for Treating Patients with Unapproved Cancer Drugs

Healthcare Compliance Perspective:

A culture of compliance and ethics requires manager/owner’s intent to do the right thing. Today’s case study shows the impossibility of creating such a culture when the manager/owner’s intent is to misrepresent for purposes of monetary advantage.

Tampa, Florida – A U.S. District Judge sentenced an oncologist to 5 years and 10 months in federal prison for receipt and delivery of misbranded drugs, smuggling goods into the United States, health care fraud, and mail fraud. As part of her sentence, the Court also entered a money judgment in the amount of $848,671.19, the proceeds of the criminal conduct. A federal jury found the doctor guilty on November 18, 2016.

According to testimony and evidence presented during the nine-day trial, the woman–a licensed physician in Florida, was the head doctor, owner, and operator of a cancer treatment clinic located in Palm Harbor. Beginning in at least May 2009, she directed others at the clinic to order- drugs from foreign, unlicensed distributors, including Quality Specialty Products (“QSP”). The drugs sold to the clinic and other foreign, unlicensed distributors were not FDA-approved. In fact, QSP had reportedly sold counterfeit versions of a chemotherapy medication that did not have the key ingredient in the drug. The doctor learned of this, but she continued to have QSP drugs administered to patients. When QSP shut down, the doctor bought drugs from another foreign, unlicensed distributor. Many of the drugs were shipped directly to the clinic from a location outside the United States, usually from the United Kingdom. The packaging and shipping documents indicated that they were manufactured and packaged for distribution in foreign countries, such as Turkey, India, and Germany.

After administering these drugs to patients, the cancer treatment clinic submitted claims for reimbursement to Medicare. In submitting those claims, the doctor falsely represented that the FDA-approved versions of the drugs had been administered, when she knew that unapproved and misbranded versions had been given to patients. In so doing, the doctor intended to generate profits from the difference between the Medicare reimbursement rates for the FDA-approved drugs and the discounted prices of the misbranded versions of those drugs purchased from foreign distributors.

(Website of Department of Justice, U.S. Attorney’s Office, Middle District of Florida)

New Jersey Gov. Signs ‘Peggy’s Law’ Protecting Seniors in Nursing Homes and Assisted Living Facilities from Abuse

Healthcare Compliance Perspective:

This new statute applies to New Jersey only; however, it is indicative of an increasingly polarized public sentiment in which citizens either strongly trust or strongly distrust long-term care facilities.

Peggy’s Law (S-1219) is named after Peggy Marzolla, a 93-year-old Brick Township woman who died in 2010 after a fall that was suspiciously blamed on powder on the floor of her room-at least that was what her daughter was told by staff at the assisted living facility. The massive injuries to the woman, however, were not consistent with a fall and were so severe that the woman’s daughter began her quest to have a law enacted that would better protect senior citizens living in assisted living facilities from abuse.

The law goes into effect this fall and stiffens up protection for the elderly in situations where there is reason to suspect that abuse or exploitation is taking place. It requires caregivers, doctors, social workers or any staff member in a care facility to report any instances of suspected abuse to local law enforcement. It also dictates that these incidents should be reported to the Ombudsman of the Institutionalized Elderly within specific time periods based on the kind of abuse involved.

The law obligates the ombudsman’s office to establish a staffed, 24-hour hotline for the purpose of providing prompt response to complaint calls. Additionally, penalties have been expanded to facility employees who can now be charged $2,500 on an individual basis if they do not report an incident. The current law increases the amount a facility can be fined for a violation from $500 to $5,000.

Salisbury Nursing Facility Receives Involuntary Termination from CMS

Healthcare Compliance perspective:

An ineffective Compliance and Ethics Program can have severe consequences including loss of Medicare and Medicaid certification.
Failing to comply with Medicare and Medicaid guidelines over an extended period has resulted in a Salisbury, NC nursing home’s loss of reimbursement for services starting September 11. This is based on information in a public notice from the U.S. Department of Health and Human Services’ Centers for Medicare & Medicaid Services (CMS).

Involuntary termination by the CMS is like a death knoll to a nursing home, and for this nursing home it means that they will not be paid for any healthcare services they provide that has previously been reimbursed by the CMS. Specifically it applies to residents who the nursing home admits after September 11, 2017. Those residents will be covered for only a 30-day period which will end on October 11, 2017.

The CMS reports the reason for this reimbursement cancellation is due to the large number of deficiencies that the nursing home received during the time between July 2016 and June 2017. During that year, they were cited by surveyors 28 times. It is notable that that is about 5.4 times the average number of healthcare compliance deficiencies throughout the entire state of North Carolina.

The healthcare compliance deficiencies covered a broad range of offenses. They involved mistreatment (1), quality of care (7), physical assessments (2), resident rights (5), pharmacy services (2), environmental issues (4), and administration (7). Most of the compliance deficiencies did not involve major harm to the residents and were rated at 2 on the scale of 1 to 4 that is used to determine the severity of the deficiency. All of the deficiencies were rectified by June 18 according to the CMS report.

The nursing home has been given a one-star rating on its overall healthcare provision by the CMS star rating system where the goal is 5-stars. It received a three-star rating regarding the quality of their patient care. The center is a for-profit organization with 185 certified beds and currently 125 residents.