The dreaded day when a family realizes that their loved one can no longer be cared for in their home, even with assistance, and must be confined to a nursing home will hopefully become less common and traumatic. Earlier this month Governor David A. Paterson announced that New York State will fund up to $150 million in projects to help communities develop alternatives to traditional nursing homes. The primary goal of this procurement is to help communities organize, finance and develop care alternatives by coordinating a variety of licensed residential programs in the development of residential options. It is hoped that this community-based care will provide the level of health care the elderly need while preserving the independence they hold dear. (more…)

This afternoon the Jets face the San Diego Chargers for the chance to play the Indianapolis Colts in the AFC Championship Game.  The Jets and their fans go into the game brimming with confidence and excitement.  But in a complaint filed Friday by the U.S. Attorney in Boston, prosecutors alleged that health care giant Johnson & Johnson paid tens of millions of dollars in kickbacks so nursing homes would improperly medicate more patients on Risperdal, a powerful schizophrenia medicine, and other drugs – prescription pain relievers Duragesic and Ultram, and the antibiotic Levaquin.  Although approved for treating schizophrenia and bi-polar disorder, Risperdal is not approved for use in elderly patients with dementia but is, nonetheless, administered to just such patients. Also on Friday, Johnson & Johnson issued a massive recall of over-the-counter drugs including regular and extra-strength Tylenol, children’s Tylenol, eight-hour Tylenol, Tylenol arthritis, Tylenol PM, children’s Motrin, Motrin IB, Benadryl Rolaids, Simply Sleep, and St. Joseph’s aspirin because of a moldy smell that has made people sick. (more…)

One of my favorite court decisions of 2009 was the Appellate Division, Second Department decision in Vinluan v. Doyle, 60 A.D.3d 237, 873 N.Y.S.2d 72. This is so because of the eloquent and impassioned defense of the constitutional right of an attorney to give, and a client to receive, advice of counsel. The case involved the simultaneous resignation of ten nurses from positions at a Smithtown, Long Island nursing home, Avalon Gardens Rehabilitation and Health Care Center, over pay and other working conditions, including being required to work as clerks for about $12 per hour and being housed in a single-family staff house with only one bathroom, inadequate heat, and no telephone service. The nurses were indicted for the misdemeanor offenses of conspiracy in the sixth degree, endangering the welfare of a child, and endangering the welfare of a physically-disabled person. (Among the patients at Avalon Gardens are chronically ill children who need the assistance of ventilators to breathe.) Felix Vinluan, the attorney who provided these nurses with legal advice, was also indicted for allegedly advising them to commit a crime. (more…)

Highgate LTC Management, LLC, a limited liability company, operated Northwoods Rehabilitation and Extended Care Facility (“Northwoods”) in Cortland County.  Following a 2005 investigation into the care of a patient at Northwoods who was in a persistent vegetative condition, five of its employees were convicted of various crimes relating to their failure to provide required care to that patient, despite stating in facility records that such care had been provided. The operator of the nursing home was subsequently charged in an indictment with six counts of willful violation of health laws and three counts of falsifying business records in the second degree, arising out of its employees’ treatment of the patient. Following a jury trial, Northwoods was convicted as charged, sentenced to a one-year conditional discharge prohibiting it from operating nursing homes in New York, and fined $15,000.  Northwoods appealed, and the Appellate Division, Third Department affirmed in People v. Highgate LTC Management, LLC, — N.Y.S.2d —-, 2009 WL 3380029 (3 Dept. 2009). (more…)

With little notice and without a public comment period, a Bush administration change in federal rules on nursing home inspections will have the practical effect of forcing litigants to go to greater lengths, including seeking court orders, to get inspection reports or depositions for cases they are pursuing or defending. The new rule generally prohibits state health departments and contractors from participating in private lawsuits involving facilities that are in the federal assistance program. The rule accomplishes this by reclassifying state employees who inspect nursing homes for the federal government as federal employees who are not allowed to provide “privileged” information or documents to the public without approval from the head of the Centers for Medicare and Medicaid Services. (more…)

It may be hard to find a more eloquent and impassioned defense of the constitutional right of an attorney to give, and a client to receive, advice of counsel than in the decision in Vinluan v. Doyle, 60 A.D.3d 237, 873 N.Y.S.2d 72 (Appellate Division, 2nd Department, January 13, 2009). The matter granted a petition for Article 78 review brought on by a group of ten nurses and their attorney to prohibit the Suffolk County district attorney from prosecuting, and Supreme Court justice from presiding over, a criminal case against the nurses, who were indicted for the misdemeanor offenses of conspiracy in the sixth degree, endangering the welfare of a child, and endangering the welfare of a physically-disabled person. The prosecution came in the aftermath of their simultaneous resignations from positions at a Long Island nursing home. The attorney who provided these nurses with legal advice was also indicted for allegedly advising them to commit a crime. (more…)

The Centers for Medicare and Medicaid Services (CMS) has released new Interpretive Guidelines for nutrition and sanitary conditions in nursing homes effective September1, 2008. The changes clarify areas such as assessment, care planning, and interventions for LTC residents. This guideline is significant as it contains detailed instructions for acceptable parameters of nutritional status, details on required nutritional assessment, food and fluid intake, care planning, and weight-related interventions. There are also added sections on wound healing and feeding tubes which were not in the previous Interpretive Guidelines. (more…)

A recent article in The Providence Journal notes that although doctors in almost every state are required by law to report suspected elder abuse of their patients, hardly any of them do, even if they fear that their silence may subject an elderly person to continued abuse at the hands of a caregiver or in a nursing home. Physicians report just 2 percent of the elder abuse and neglect cases recorded each year by state protective service agencies, according to medical and legal experts and recent articles published in medical journals. (more…)

Republican Sen. Chuck Grassley and Democratic Sen. Herb Kohl have introduced the Nursing Home Transparency and Improvement Act of 2008 which seeks to force nursing homes to provide clearer information about ownership and accountability.  Confusion regarding ownership has made it difficult for regulators to identify parties responsible for poor care and shields owners from potential lawsuits.  Additionally, a primary goal is to make it easier for the public to compare nursing homes.  The legislation would trigger the largest reform of nursing home care in 21 years. (more…)

Americas Watchdog and its Corporate Whistleblower Center have just released the results of its third annual study focused on Medicare & Medicaid fraud. The report continues to show widespread Medicare/Medicaid billing abuse and fraud involving all aspects of health care. The Corporate Whistle Blower Center has just reported its 2007 year end findings on the state of Medicare/Medicaid over billing/fraud in the United States. The report included three areas where Medicare/Medicaid are being over-billed or defrauded; nursing homes/rehab centers, pharmaceuticals, and boutique hospitals, not for profits hospitals, or hospitals owned by doctors/investor groups. (more…)