South Carolina Nursing Home Blog

South Carolina Nursing Home Blog

Nursing Home Information & Litigation

Arbitration is a Corrupt Fraud

Posted in Arbitration

Matthew Saroff wrote the below article for his blog “40 Years in the Desert“.

Arbitration is a Corrupt Fraud

This little story of the corruption that is a feature, not a bug, of the arbitration process has made it to the New York Times:

Five years ago, Sean Martin, a registered representative at Deutsche Bank Securities in New York, saw something troubling on his trading desk.

A few of his colleagues, he said, were letting preferred hedge fund clients listen in on confidential market commentary by the firm’s analysts before their views were made public. He alerted his superiors and was almost immediately given a negative review, a first in more than 10 years at the firm, he said. His bosses also removed him from the group he’d been working with and cut his compensation.

Mr. Martin, who continues to work at Deutsche Bank, said he believed that he was being punished for reporting misconduct and took the one avenue of redress that was open to him. In August 2012, he brought an arbitration case against the firm, contending retaliation and asking to recover his lost earnings. As is typical in the financial industry, his employment contract required that any dispute between him and his employer go through private arbitration, not the courts. Mr. Martin’s matter is being heard by three arbitrators associated with the Financial Industry Regulatory Authority, a self-regulatory organization that operates the largest dispute resolution forum in the securities industry.

But Mr. Martin’s experience with arbitration, both he and his lawyer say, has raised questions of fairness in the process. The three-member panel hearing his case has barred him from testifying about certain crucial aspects of what he saw at Deutsche Bank and disallowed the introduction of documents that bolster his claims. This led his lawyer to conclude that the panel was not interested in specifics of the behavior at the heart of his accusations — and to ask a state court to step in.

“When I filed this arbitration, I expected that Finra would resolve the dispute between Deutsche Bank and me in a fair way,” Mr. Martin, 41, said in a statement provided by his lawyer. “I was surprised and disappointed when the arbitrators refused to listen to important parts of what I wanted to say and rejected or redacted my exhibits. I can’t see how a dispute can be fairly resolved if one party is not even allowed to tell their side.”


“How can a panel of arbitrators for the regulator justify not hearing evidence of wrongdoing?” asked Robert Kraus, a partner at Kraus & Zuchlewski in New York, who represents Mr. Martin. “It is completely upside-down.”

But Mr. Kraus, worried that his client would not get a fair hearing, last week filed a motion in New York State Supreme Court asking to stay the arbitration hearings. Arguments are on the docket for Wednesday in Manhattan. If the judge grants Mr. Kraus’s request, the court will hear arguments on whether the arbitrators should be removed.


Mr. Kraus said he did not take the decision lightly to file his request with the court. He said he’s had success in other Finra arbitrations over the years but that this case was different.

“Unlike other hearings where you question a ruling here and there, these arbitrators repeatedly excluded evidence that lies at the heart of our case,” Mr. Kraus said. “From time to time, you get these panels that go off the rails, and then the question is how do you remedy that?”

This is not surprising.

The private arbitration system is inherently corrupt.

The continued employment of arbitrators is dependent upon satisfaction the firms, and not the employees of customers, so their rulings invariably favor the big corps, at the expense of due process for the little guys.

Sufficient Notice of Arbitration Clause

Posted in Arbitration

On August, 18, the Ninth Circuit affirmed the district court’s denial of Barnes & Noble, Inc.’s motion to compel arbitration, finding that plaintiff did not have sufficient notice of Barnes & Noble’s Terms of Use agreement, and thus, could not have unambiguously manifested assent to the arbitration provision contained in it.  See Nguyen v. Barnes & Noble, Inc., Case No. 12-56628, 2014 WL 4056549, *1 (9th Cir. Aug. 18, 2014).  In Nguyen, the plaintiff brought a putative class action against Barnes & Noble after it had cancelled his purchase of two heavily discounted tablet computers during an online “fire sale.”  The plaintiff alleges that Barnes & Noble engaged in deceptive business practices and false advertising in violation of California and New York law.

In affirming the district court’s ruling, the Ninth Circuit found that the plaintiff did not have constructive notice of the arbitration clause in it, despite the fact that Barnes & Noble’s Terms of Use was available through a hyperlink at the bottom left of every page of its website (i.e., as a “browsewrap” agreement) and was in proximity to relevant buttons the website user would have clicked on.  Id. at *5-6.  The Ninth Circuit held that the onus was on website owners to put users on notice of the terms to which they wish to bind consumers, and that this could have been done through a “click-wrap” agreement where the user affirmatively acknowledged the agreement by clicking on a button or checking a box.  Id. at *5-6.  Indeed, the decision expressly states that had there been evidence of this, the outcome of the case may have been different.  Id. at *4.

Staffing at 4.1 hours of nursing care per day per patient

Posted in Staffing

Illinois Citizens for Better Care  is a group dedicated to Improving the quality of life of Illinois long-term care residents.  They recently published the below are their website.

Both the federal government and Illinois require that nursing homes have enough staff to meet the needs of their residents.  The federal government does not enforce a minimum number for how much nursing staff a nursing home must have.  It does recommend that each resident who needs skilled care get at least 4.1 hours of nursing care every day, including 1.2 hours  (72 minutes) by a licensed nurse.  The federal government recommends that 45 minutes of the  1.2 hours be care by a registered nurse. In addition to the general requirement that nursing homes have enough staff to meet their residents’ needs, Illinois has always had an actual number for minimum nursing staff.  The 2010 Illinois nursing home reform law is increasing the minimum number; by January 1, 2014, it is scheduled to be one-and-a-half times what it was when the law was passed.

As of January 1, 2013, Illinois requires that a nursing home have enough staff to give each resident needing skilled care at least 3.4 hours of nursing care, including at least 51 minutes of licensed nurse care.  At least 21 minutes of the licensed nurse time must be care by a registered nurse.  For residents needing intermediate care, the numbers as of January 1, 2013, are 2.3 hours total nursing care, including at least 34 minutes licensed nurse time (14 minutes registered nurse time.)

Minimum staffing is scheduled to increase on January 1, 2014. The final numbers are supposed to be 3.8 hours total nursing time for residents needing skilled care, including 57 minutes licensed nurse time (23 minutes registered nurse time.)  For residents needing intermediate care, the numbers are scheduled to be 2.5 hours total time, 38 minutes total nursing time, (15 minutes registered nurse time.) The nursing staff counted in these numbers includes registered nurses, licensed practical nurses, and certified nursing assistants.  Under some circumstances, therapists and therapy aides may also be counted.  Other staff may be counted for residents who have a diagnosis of a serious mental illness.

Nursing homes are supposed to count as direct care staff, only people who are actually taking care of residents. They are not allowed to count time scheduled for breaks or training. You can see the staffing rule here. 

Nursing homes are required to post publicly, the names and job titles of the nursing staff working each shift.  Because nursing homes do not publicly post how many “skilled” and “intermediate” residents they have on each floor or unit, most of the time it will not be possible to tell automatically if the nursing home is meeting its minimum staffing requirements.  (If a unit obviously has all skilled residents – say,  on ventilators or oxygen – it is easier for an outsider to do a count.)  You can get some idea, however, from the staffing numbers that are posted, and – if you visit during different shifts – from talking to the staff as well as doing a head count.

All employees who examine or care for residents, are required to wear an identification badge with their first name, licensure status (if any,) and their job title or position. Regardless of the numbers, nursing homes are still required to meet their residents’ needs, even if this means they need more staff than the minimum numbers.

Video Footage Shows Neglect

Posted in Abuse and Neglect, Staffing

The Buffalo News reported that two employees of Erie County Medical Center’s skilled nursing facility were arrested following an investigation into their treatment of a nursing home resident.  The investigation relied on a hidden camera placed in the patient’s room and revealed an alleged pattern of neglect. Video footage appears to show that Donna Laury, 48, and Nakeia Green, 35, both certified nurse’s aides from Buffalo, violated the resident’s personal care plan by failing to use two people when performing incontinence care and failing to use a mechanical lift to transfer the resident. When the aides did use a mechanical lift, they failed to use two people to operate it. The aides then allegedly falsified documents in an effort to conceal their neglect.  The incidents took place in December 2012 in ECMC’s Skilled Nursing Facility, located in the hospital.

The victim was identified as a 79-year-old resident who suffers from Alzheimer’s disease and dementia. She is non-ambulatory and totally dependent on nursing staff of the facility for her care.  The aides were charged with felony counts of falsifying business records in the first degree and misdemeanor counts of endangering the welfare of an incompetent or physically disabled person and willful violation of public health laws.


Memories of Neglect

Posted in Advocacy, Dementia Care, Medications

A nursing home resident with Alzheimer’s might forget receiving poor or negligent care, but the bad feelings created by ill treatment still could persist, University of Iowa researchers say.

Investigators showed sad and happy films to 17 Alzheimer’s patients and 17 people with healthy cognition, then assessed their memories of the movies and their emotional states. Those with Alzheimer’s quickly struggled to recall details of the films, or even that they had just seen a film. However, the feelings of sadness or happiness created by the movies lasted for up to half an hour.

“Quite strikingly, the less the patients remembered about the films, the longer their sadness lasted,” the university noted in a press release. “While sadness tended to last a little longer than happiness, both emotions far outlasted the memory of the films.”

The findings show that caregivers can have a powerful impact on residents’ well-being by doing “simple” things, said lead author Edmarie Guzman-Velez, a doctoral student in clinical psychology. These things might include serving favorite foods, interacting socially or joking with patients.

Full findings appear in Cognitive and Behavioral Neurology.

The Overmedicated Elderly

Posted in Medications

WRIC reported the problem of chemical restraints among nursing home residents.  There’s an unsuspecting problem lurking within the elderly population in America – overlapping prescription medications that put them at risk for adverse drug reactions and even overdosing.

According to some, the problem is an epidemic. “It’s the norm rather than the exception for sure that people are having problems they’re not even aware are medication related,” Keith Kittinger of Bremo Pharmacy in Richmond, Va. Said.

Pharmacists study their patient’s lists of drugs to see how they’ll interact, but they don’t always get it right, as Patti Moyer of Richmond knows. Three years ago Moyer learned she was taking twice her required dosage of blood pressure medications because she was prescribed two different pills.

Adverse drug reactions kill more than 100,000 people in the U.S. every year and can cause serious injury to more than two million. One thing contributing to the problem is that many of the symptoms that the medications are prescribed for, like dizziness, confusion and dementia, are actually symptoms of other medications that the individual is taking.

Speaking to the pharmacists and developing a relationship with them is Moyer’s advice for learning how to prevent drug reactions and overdoses, especially for older adults who are more at risk for them.


Extendicare Settlement with DOJ

Posted in Advocacy, Medicare, Trial themes

Extendicare Health Services Inc. (Extendicare) and its subsidiary Progressive Step Corporation (ProStep) have agreed to pay $38 million to the United States and eight states to resolve accusations that Extendicare billed Medicare and Medicaid for materially substandard nursing services that were so deficient that they were effectively worthless and billed Medicare for medically unreasonable and unnecessary rehabilitation therapy services, according to the the Justice Department and the U.S. Department of Health and Human Services Office of Inspector General (HHS-OIG).  A federal investigation into Extendicare Health Services Inc. accused the company of failing to provide appropriate care, follow safety protocols or maintain enough skilled nurses. Those lapses in some cases resulted in head injuries to residents, falls, bed sores and fractures and cases of malnutrition, dehydration and infection.  This resolution is the largest failure of care settlement with a chain-wide skilled nursing facility in the department’s history.

Between 2007 and 2013, in 33 of its skilled nursing homes in eight states, Extendicare billed Medicare and Medicaid for materially substandard skilled nursing services and failed to provide care to its residents that met federal and state standards of care and regulatory requirements.  The government alleges, for example, that Extendicare failed to have a sufficient number of skilled nurses to adequately care for its skilled nursing residents; failed to provide adequate catheter care to some of the residents and failed to follow the appropriate protocols to prevent pressure ulcers or falls.  Between 2007 and 2013, in 33 of its skilled nursing homes, Extendicare provided medically unreasonable and unnecessary rehabilitation therapy services to its Medicare Part A beneficiaries, particularly during the patients’ assessment reference periods, so that it could bill Medicare for those patients at the highest per diem rate possible.

Extendicare has also been required to enter into a five year chain-wide Corporate Integrity Agreement with HHS-OIG.  OIG required Extendicare to agree to a Corporate Integrity Agreement under which Extendicare must have a comprehensive compliance program with systems to address the quality of resident care.  Extendicare’s compliance program must include, among other things, corporate-level committees to address compliance and quality, including a committee to assess staffing, and an internal audit program to assess the quality of care provided to its residents.  Extendicare must retain an independent monitor, selected by the OIG, who will regularly visit Extendicare’s facilities and report to the OIG.  In addition, an independent review organization will perform annual reviews of Extendicare’s claims to Medicare.

Extendicare is a Delaware corporation that, through its subsidiaries, operates 146 skilled nursing facilities in 11 states.  ProStep provides physical, speech, and occupational rehabilitation services.

Acting Associate Attorney General Stuart F. Delery said:  “It is critically important that we confront nursing home operators who put their own economic gain ahead of the needs of their residents.  Operators who bill Medicare and Medicaid while failing to provide essential services or bill for services so grossly substandard as to be effectively worthless will be pursued for false claims.”


Woman Receives 10 Years for Nursing Home Abuse

Posted in Abuse and Neglect

KOCO reported that Elizabeth Kibler, employee of Grace Living Center in Oklahoma City, was sentenced to 10 years, with a minimum of four years spent in custody, for abusing one of her elderly patients. The victim Anita Rich’s wounds included bruising around her mouth and on her arms, which were documented by videos her son made at the treatment center.

Her son, Christopher Rich, took the videos after noticing that his mother was scared all the time during her stay at the center and felt that he had no other options for improving her treatment. Videos of Kibler abusing the victim verbally as well as pouring water down her feeding tube were released by the district attorney’s office. The victim’s daughter, Melanie Rich said that the family hopes to see nursing home reform in the future so that no one else has to suffer what they did.


DOJ Settlement with Johnson & Johnson

Posted in Medicare, Medications

Global health care giant Johnson & Johnson (J&J) and its subsidiaries will pay more than $2.2 billion to resolve criminal and civil liability arising from allegations relating to the prescription drugs Risperdal, Invega and Natrecor, including promotion for uses not approved as safe and effective by the Food and Drug Administration (FDA) and payment of kickbacks to physicians and to the nation’s largest long-term care pharmacy provider.  The global resolution is one of the largest health care fraud settlements in U.S. history, including criminal fines and forfeiture totaling $485 million and civil settlements with the federal government and states totaling $1.72 billion.

In a criminal information filed today in the Eastern District of Pennsylvania, the government charged that, from March 3, 2002, through Dec. 31, 2003, Janssen Pharmaceuticals Inc., a J&J subsidiary, introduced the antipsychotic drug Risperdal into interstate commerce for an unapproved use, rendering the product misbranded.  For most of this time period, Risperdal was approved only to treat schizophrenia.  The information alleges that Janssen’s sales representatives promoted Risperdal to physicians and other prescribers who treated elderly dementia patients by urging the prescribers to use Risperdal to treat symptoms such as anxiety, agitation, depression, hostility and confusion.  The information alleges that the company created written sales aids for use by Janssen’s ElderCare sales force that emphasized symptoms and minimized any mention of the FDA-approved use, treatment of schizophrenia.  The company also provided incentives for off-label promotion and intended use by basing sales representatives’ bonuses on total sales of Risperdal in their sales areas, not just sales for FDA-approved uses.

In a related civil complaint filed in the Eastern District of Pennsylvania, the United States alleges that Janssen marketed Risperdal to control the behaviors and conduct of the nation’s most vulnerable patients: elderly nursing home residents, children and individuals with mental disabilities.  The government alleges that J&J and Janssen caused false claims to be submitted to federal health care programs by promoting Risperdal for off-label uses that federal health care programs did not cover, making false and misleading statements about the safety and efficacy of Risperdal and paying kickbacks to physicians to prescribe Risperdal.

In its complaint, the government alleges that the FDA repeatedly advised Janssen that marketing Risperdal as safe and effective for the elderly would be “misleading.”  The FDA cautioned Janssen that behavioral disturbances in elderly dementia patients were not necessarily manifestations of psychotic disorders and might even be “appropriate responses to the deplorable conditions under which some demented patients are housed, thus raising an ethical question regarding the use of an antipsychotic medication for inappropriate behavioral control.”

The complaint further alleges that J&J and Janssen were aware that Risperdal posed serious health risks for the elderly, including an increased risk of strokes, but that the companies downplayed these risks. The complaint alleges that, despite the FDA warnings and increased health risks, from 1999 through 2005, Janssen aggressively marketed Risperdal to control behavioral disturbances in dementia patients through an “ElderCare sales force” designed to target nursing homes and doctors who treated the elderly.

The government’s complaint also contains allegations that Janssen paid speaker fees to doctors to influence them to write prescriptions for Risperdal.  Sales representatives allegedly told these doctors that if they wanted to receive payments for speaking, they needed to increase their Risperdal prescriptions.

The civil settlement also resolves allegations that, in furtherance of their efforts to target elderly dementia patients in nursing homes, J&J and Janssen paid kickbacks to Omnicare Inc., the nation’s largest pharmacy specializing in dispensing drugs to nursing home patients.  In a complaint filed in the District of Massachusetts in January 2010, the United States alleged that J&J paid millions of dollars in kickbacks to Omnicare under the guise of market share rebate payments, data-purchase agreements, “grants” and “educational funding.”  These kickbacks were intended to induce Omnicare and its hundreds of consultant pharmacists to engage in “active intervention programs” to promote the use of Risperdal and other J&J drugs in nursing homes.  Omnicare’s consultant pharmacists regularly reviewed nursing home patients’ medical charts and made recommendations to physicians on what drugs should be prescribed for those patients.  Although consultant pharmacists purported to provide “independent” recommendations based on their clinical judgment, J&J viewed the pharmacists as an “extension of [J&J’s] sales force.”

J&J and Janssen have agreed to pay $149 million to resolve the government’s contention that these kickbacks caused Omnicare to submit false claims to federal health care programs.

The civil settlements described above resolve multiple lawsuits filed under the qui tam, or whistleblower, provisions of the False Claims Act, which allow private citizens to bring civil actions on behalf of the government and to share in any recovery.

Hospice Care in Nursing Homes

Posted in Advocacy, Trial themes

Senior Housing News reported that care experiences are typically worse in the nursing home setting, according to the latest results of a Hospice_Field_Test_Report_2014 by the Centers for Medicare & Medicaid Services (CMS).  The Hospice Experience of Care Survey measured experiences of patients and their caregivers in three hospice settings: nursing home (including both skilled and regular nursing facilities), home care (including assisted living facilities) and inpatient care (acute care hospitals and freestanding hospice IPUs).

While average overall rating of hospice care scored 93 out of 100 in the survey, nursing home care received a score of 90.2.  Using a number of criteria, respondents ranked nursing home care, which for the most part scored lower than other care settings. The composite, Understanding the Side Effects of Pain Medication, ranked lowest in nursing home setting satisfaction, with a score of 71.1. In comparison, that score for home care was 89.5, for acute care hospitals was 73.7 and for hospice IPUs was 81.  Other nursing home composite scores ranged from 86.2 for Getting Help for Symptoms and 88.5 for Hospice Team Communication to 95.2 for Providing Support for Religious and Spiritual Beliefs and 95.3 for Treating Your Family with Respect.