South Carolina Nursing Home Blog

South Carolina Nursing Home Blog

Nursing Home Information & Litigation

The Importance of Audit Trails

Posted in Discovery issues, Trial themes

By law, every nursing homes using computerized medical records must have a system that can generate a log or audit trail showing not only every electronic entry, but every access of the electronic record.  The audit trail prevents the alteration of the records without leaving a telltale trail behind.

The Health Insurance Portability and Accountability Act (HIPAA) of 1996 required the establishment of national standards for
electronic health care transactions. Health care providers were to implement security measures to ensure that electronically
transmitted and electronically protected health information “is not improperly modified without detection until disposed of.”
HIPAA also mandated that health care facilities retain the required documentation (including audit trail data) “for six years from the date of its creation.”

More recently, the Health Information Technology for Economic and Clinical Health Act (HITECH Act) was designed to “build
trust in health information exchange. HITECH, in addition to protecting medical information and personal data, also provides for an increased transparency to patients, who now are supposed to be granted access to their own electronic records within 30 days of the request.

Additionally, patients should be permitted access through a portal, so they can see the records in the same format that the healthcare providers see when they are making or accessing the patients’ records.

Why is this important?  Here is an example why.

Diana L. Stephens, a nurse at Golden Hill Nursing Home, is facing charges for allegedly stealing oxycodone and codeine while employed.  She had worked at the home from September 2015 through January, according to an affidavit.
Stephens is accused of diverting the painkillers by signing out the drugs on the controlled substance log, but the amount showed discrepancies on the patients’ electronic medication administration record, according to the affidavit that the agent filed in court.  The discrepancies showed that the patients were getting a lot fewer of the dosages units than Stephens had signed out.

“Shame on Shlomo”

Posted in Advocacy, Staffing, Trial themes

Jeff Graham visits his 77-year-old mother every Sunday at Pacific Rehabilitation and Wellness Center in Eureka.  Graham was one of about 20 people who gathered to protest Brius Healthcare Services’ plans to close the facility and two others in Eureka, which would result in nearly 150 patients having to be moved out of the county to new facilities. Graham and other protestors Thursday said they feel frustrated at the lack of information Brius has given them about the closures and what is being done to prevent them. They said they feel helpless.

Eureka residents Bob Rocha and Kellie Shaner stand in front of the Pacific Rehabilitation and Wellness Center in Eureka on Thursday to protest Brius Healthcare Services’ plans to close three Eureka nursing homes, including Pacific. Shaner’s mother currently lives in one of the nursing homes slated for closure.

The curtains were closed and the blinds were shut at Pacific as the protestors waved signs at the passing commuters and chanted lines such as “People over profits, “Senior lives matter,” “This closure will kill,” and “Shame on Shlomo” — referring to Brius’ owner Shlomo Rechnitz.

“Not having anything in this area, that’s just not acceptable,” he said. “The problem that I have for giving guys like these more money is they just come back the next day and ask for more. Greed is a motivator that seems to be killing us now.”

Also among the protestors were healthcare workers, like Eureka resident Kellie Shaner.  . Shaner said she recently moved her mother Sandra from a nursing home in Crescent City to the Eureka Rehabilitation and Wellness Center. The move gave Shaner and her grandparents more chances to see her and provide her favorite comforts like a cup of coffee and some apple pie. But now Shaner’s mother faces yet another move.

“My mother is devastated. She’s terrified,” Shaner said. “To increase the miles between us and her for potentially a second time and not knowing where she’s going is terrifying for all of us.”

She said she’s tired of Brius’ “blame game” when she states the company and its owner make enough to prevent the closures from happening themselves.

Eureka resident and activist Pat Kanzler said she has worked as a nurse for about 30 years. When she worked, Kanzler said the staff were not paid well enough and are overworked due to low staffing.

“They just didn’t have enough staff to take care of people, and as the director of staff development that is what you’re supposed to do: train people and make sure people do their job,” she said. “How can you do that if you don’t have enough staff?”

Kanzler also stated the facilities were not compliant with state standards for having enough direct care staff at the facility, and said that the facility would put management on the floor during inspections to make it look like they had enough.


Reliant Senior Care Holdings Settlement

Posted in Advocacy, Medicare, Trial themes

CBS Pittsburgh reported the $2 million settlement with Reliant Senior Care Holdings related to claims of failing to provide basic services to their customers.  The company operated 22 skilled nursing facilities throughout Pennsylvania from 2012 to the present.

An investigation revealed Reliant left its facilities understaffed, making workers unable to help those living there with such basic needs as eating, drinking, showering and incontinence care.  This is a common problem in many for profit chains.

About $1.25 million of the settlement will be used to help the Department of Health revamp its oversight of nursing homes.  She says money will help the state enact recommendations made by a task force formed last year.

Left Alone During Hurricane Matthew

Posted in Advocacy, Staffing, Trial themes

CBS News reported the tragic death of David Outlaw who drowned in a puddle, pinned underneath his wheelchair after being left alone at the height of Hurricane Matthew to smoke outside his South Carolina nursing home, National Health Care facility in Columbia.

A nurse told deputies that she left him unattended in a courtyard to smoke.  A nurse then came to give Outlaw his medication several minutes later and found him face-down in the puddle around 7:45 a.m., according to a police report. The report did not specify how much water was standing in the courtyard.

“Even Gov. (Nikki) Haley said everyone needed to be inside,” Richard Outlaw told The Associated Press. “My brother survived Vietnam, car crashes and two strokes, just to die in a puddle of water?”

“How negligent is it to just leave him outside in a hurricane by himself?” Outlaw’s wife Karyl said.

David Outlaw had a stroke seven years ago that left his left side paralyzed. His wife took care of him until last year, when she decided to send him to the nursing home. Outlaw’s health improved – his high-blood pressure was better controlled and his blood sugar readings were improving, his wife said.

“He still had a lot of life ahead of him,” Karyl Outlaw said.

The nursing home and deputies have told the family almost nothing about David Outlaw’s death, she said. She’s waiting on the investigations to make sure someone is held accountable.


“Unbridled Greed.”

Posted in Advocacy, Medicare, Trial themes

The Washington Times Herald reported the indictment against James Burkhart, CEO of American Senior Communities, for   federal charges in a kickback scheme worth millions of dollars.  American Senior Communities operates dozens of Indiana nursing homes including two in Washington.  The defendants used American Senior Communities’ network of about 70 nursing homes and thousands of patients to their advantage

Grand jurors charged Burkhart with mail and wire fraud and money laundering. American Senior Communities fired Burkhart last September, three days after federal agents searched his home and the company’s Indianapolis headquarters. Also charged are former company COO Daniel Benson of Fishers; Burkhart’s brother, Joshua Burkhart, of Fishers; and Burkhart’s friend, Steven Ganote, of North Salem.
 “Federal prosecutors in Indianapolis said the defendants owned shell companies and used them to falsify and inflate the costs of goods and services. This allowed the defendants to steal discounts and rebates and conceal kickbacks, prosecutors said, letting them “divert, receive and launder millions of dollars for their personal benefit.”
Prosecutors said the defendants used the money to buy lavish items, such as vacation homes, diamond jewelry, Rolex watches, gold bars and coins, use of a private plane and Las Vegas casino chips.

Victory in Arkansas

Posted in Advocacy

Arkansas Online had an article on the battle over a proposed constitutional amendment to limit victims’ awards in medical injury cases, and new ethics rules governing the sensitive issue of campaign contributions and court decisions related to judicial elections in Arkansas.  The constitutional amendment they backed would have required the Legislature to cap “non-economic damages” in medical lawsuits at no less than $250,000, as well as limit fees for attorneys who file and win those lawsuits.

Over the past dozen years, nursing-home owners and their businesses have contributed at least $276,000 to the campaigns of the Supreme Court’s six elected justices, contribution records analyzed by the Arkansas Democrat-Gazette show.

The Arkansas Supreme Court unanimously decided in Ross v. Martin (CV-16-776) and Wilson v. Martin (CV-16-763)  that the wording of the proposed constitutional amendment, Issue 4, was legally insufficient. The Supreme Court, in blocking the amendment vote, said the term “non-economic” was not properly defined for voters. Because the issue was already printed on ballots, the court barred state officials from counting the votes.

The state’s Code of Judicial Conduct requires judges to disqualify themselves from cases under certain circumstances, including when sizable campaign donations “may raise questions as to the judge’s impartiality.”  But those same rules require judicial candidates to avoid learning the identities of their campaign donors and the amounts they contribute.

Critics of judicial election say that’s an almost impossible goal, since candidates attend fundraisers and sometimes sign their own campaign-contribution reports.

Large campaign donations to judges always raise questions about the fairness of the courts or the appearance of fairness, at least in the minds of the general public, said David Stewart, retired executive director of the Arkansas Judicial Discipline and Disability Commission.

That is the inherent problem in electing justices,” said Stewart, a longtime proponent of judicial appointment. “If you’re going to have elections, the candidates have to get their money from somewhere. And the public is aware of the issues involving campaign donations and the legal system.  So the appearance is always bad.”

The Arkansas Bar Association was “pleased that the Arkansas Supreme Court agreed with our analysis and did so unanimously in the opinion. The court’s opinion is well reasoned and reflects what we believe to be the law in Arkansas,” Bar Association President Denise Hoggard said in an email.






Expenditure Transparency

Posted in Advocacy, Medicare, Trial themes

McKnight’s had a great article on the recent GAO Report on Access to Expenditures.  The Report concludes that information on how and why nursing homes spend money should be accessible to public stakeholders.  The investigation found that information on expenditures is not readily accessible to the public or verified for accuracy and completeness.

“GAO investigators created the report to determine how the Centers for Medicare & Medicaid Services collects and shares skilled nursing expenditure data, as well as how facility costs vary by characteristics such as for-profit or nonprofit ownership. The report also looked into how staffing levels may vary based on facility characteristics and margins.”

Between 2011 and 2014, for profit nursing homes spent less on care, staffing, and training compared to government or nonprofit nursing homes.  Direct and indirect care costs were found to be even lower at chain-owned facilities.

Benchmark Healthcare Shut Down

Posted in Advocacy, Trial themes

The St. Louis Dispatch reported the ongoing problems at Benchmark Healthcare nursing home.  Benchmark Nursing Home owned by Festus was facing a debt crisis and was not able to provide Benchmark with money to pay for resident’s basic living necessities such as food nor were they able to pay nursing home staff.

Events leading up to staving their patients included a nursing home with no phone service, no pay checks, and the building was even infested with flies because they couldn’t pay for a trash pickup service. When food deliveries stopped, the staff was using their own money to pay for groceries for the residents.

Benchmark Nursing Home was brought to court in July of 2016 but the charges were ignored once food was delivered again. However, in August during a follow up visit, it was found out that residents were not getting the necessary medications for congestive heart failure, epilepsy, and more.

On September 13th, the state closed the nursing home and relocated more than 60 residents.

Nursing Home Owner Arrested for Medicare Fraud

Posted in Abuse and Neglect, Trial themes

The Chicago Tribune reported the billion dollar scheme that led to the arrest of nursing home owner/operator Philip Esformes. Esformes and his father and business partner, Morris Esformes, took in millions of dollars annually from federal programs for the sick and disabled.

Arrested at one of his $2 million estates on the Miami Beach waterfront and placed in immediate detention, Esformes has been denied bond.  Esformes is “locked in a Florida detention cell where he awaits trial for allegedly orchestrating an unprecedented $1 billion Medicaid and Medicare bribery and kickback scheme.”

Two decades of Justice Department probes and Tribune investigations into allegations of patient abuse, corruption and substandard conditions at their Illinois, Florida and Missouri nursing home facilities has finally led to his arrest.

“The new federal indictment alleges that Philip Esformes and a handful of Miami co-conspirators bilked Medicaid and Medicare for 14 years by cycling some 14,000 patients through various Esformes facilities, where many received unnecessary or even harmful treatments. Drug addicts were allegedly lured to the facilities with promises of narcotics, and prosecutors say some received OxyContin and fentanyl without a physician’s order to entice them to stay.”

Esformes allegedly instructed a co-conspirator to “bribe a state (Florida) regulator” so Esformes could learn in advance which facilities inspectors planned to visit, and “modify and falsify files at his facilities before state regulators inspected.”


Dept. of Labor Sues NH Executive

Posted in Nursing home cases in the news, Trial themes

According to a report by the Connecticut Post, the U.S. Department of Labor has sued Chaim Stern, chief financial officer for Bridgeport Health Care Center, accusing him of diverting $4 million in retirement plan assets to a New York-based religious corporation and to himself.  The suit notes that Stern serves as the sole person responsible for a retirement plan for the company’s employees and beneficiaries and those of another nursing home, Bridgeport Manor.

According to the Labor Department, an investigation by its Employee Benefits Security Administration found that Bridgeport Health and Stern, who also serves as the company’s chief operating officer and nursing home administrator, have been redirecting funds from the retirement plan since at least January 2011 to themselves and to Em Kol Chai, a corporation that lists Stern as its president.
“The best interests of plan participants are paramount under federal law, and this agency will seek every remedy when retirement dollars are misdirected,” said Phyllis C. Borzi, assistant secretary of labor for employee benefits security, in a statement. “The alleged breaches in this case are certainly serious enough to take to court, and based on our investigation, have clearly had a negative impact on plan participants.”

The lawsuit asks the court to remove Stern as plan fiduciary and appoint an independent fiduciary, permanently prohibit Stern from serving as a fiduciary to any federally covered plan, require the company and Stern to restore to the plan any losses by undoing their transactions, and perform an accounting of all plan transactions from Jan. 3, 2011, to the present.