South Carolina Nursing Home Lawyer & Attorney : Poliakoff & Associates Law Firm : Elderly Care, Senior Care

Inevitably in most of our nrsing home cases, numerous documents that are intended to show the care, treatment, and services provided to the resident are missing, lost, or never done by the staff.  This occurs because the care was not provided or understaffing caused the staff not to have time to document or poorly trained and supervised staff.  Despite the fact that all nurses were taught and accept the axiom that "If it wasn't documented, it wasn't done", the insurance companies, nursing home industry, and their defense counsel always say the missing information is not relevant and does not show that the care wasn't given but rather wasn't documented.  Hopefully, the new Medicare reimbursement policies will preclude this frivolous argument.

McKnight's has an article discussing the new Medicare reimbursement policies and the necessity of documentation to prove care provided.  Nursing homes will have a greater role in ensuring accurate documentation of care.    Compliance officers' experience in billing and coding could be easily transferred to the area of quality-of-care forms.  Physicians and care workers will need to learn the appropriate language from compliance officers to best fill out the claims forms.

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The Center for Medicare & Medicaid (CMS) is the component of the Federal Government's Department of Health and Human Services that oversees the Medicare and Medicaid programs. 

Medicaid and Medicare dollars are used to cover nursing home care and services for the elderly and disabled. State governments oversee the licensing of nursing homes. In addition, State have a contract with CMS to monitor those nursing homes that want to be eligible to provider care to Medicare and Medicaid beneficiaries. Congress established minimum requirements for nursing homes that want to provide services under Medicare and Medicaid. These requirements are broadly outlined in the Social Security Act (the Act). The Act also entrusts the Secretary of Health and Human Services (DHHS) with CMS, a DHHS Agency, is also charged with the responsibility of working out details of the law and how it will be implemented, which it does by writing regulations and manuals.

CMS contracts with each State to conduct onsite inspections that determine whether its nursing homes meet the minimum Medicare and Medicaid quality and performance standards. The State conducts inspections of each nursing home that participates in Medicare and/or Medicaid about once a year.  The State also investigates complaints about nursing home care.

During the nursing home inspection, the State looks at many aspects of quality. The inspection team observes resident care processes, staff/resident interaction, and environment. Using an established protocol of residential rights, the team interview a sample of residents and family members bout their life within the nursing home, and interview caregivers and administrative staff. 

Depending on the nature of the problem, the law permits CMS to take a variety of actions; for example, CMS may fine the nursing home, deny payment to the nursing home, assign a temporary manager, or install a State monitor. CMS considers the extent of harm caused by the failure to meet requirements when it taken an enforcement action. If the nursing home does not correct its problems, CMS terminates its agreement with the nursing home. As a result, the nursing home is no longer certified to provide care to Medicare and Medicaid beneficiaries. Any beneficiary residing in the home at the time of the termination are transferred to certified facilities.

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Sometimes Defendants try to file an early motion to dismiss on Plaintiff's negligence per se cause of action. Here is a recent case that will help you overcome Defendant's Motion to Dismiss.

"It is obvious that as a resident of the nursing home owned by Mariner, McLain's father belonged to the class of persons for whom these statutes and regulations were intended to protect, and that the injuries set forth in the complaint, and which we assume to have occurred for purposes of a motion to dismiss, were among those these same statutes and regulations were designed to prevent. Likewise, the complaint's allegations of violations of the same statutes and regulations would be competent evidence of Mariner's breach of duty under a traditional negligence action. The trial court therefore erred when it granted Mariner's motion to dismiss McLain's negligence per se and negligence causes of action. McClain v. Mariner, 631 S.E.2d 435 (Ga. 2006)

Golden Villa v. Smith, 674 S.W.2d 343 (Tex. App. 1984)
OBRA regulations are admissible since a violation of rules which specify a maximum standard of care can provide a plaintiff with a prima facie case of negligence against a nursing home.

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OBRA is the federal regulations that establish the standard of care in nursing home facilities that receive Medicare or Medicaid. In those regulations, the below section clearly establishes that the governing body is ultimately responsible for how the nursing home is operated and managed.

42 CFR 483.75 provides:

(d) Governing body. (1) The facility must have a governing body, or
designated persons functioning as a governing body, that is legally
responsible for establishing and implementing policies regarding the
management and operation of the facility; and
(2) The governing body appoints the administrator who is--
(i) Licensed by the State where licensing is required; and
(ii) Responsible for management of the facility.

Canavan v. Nat'l Healthcare, 889 So.2d 825, 2004 Fla. App. holds that the governing body may be liable under this regulation.

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The NH’s responsibility to meet the individual needs of each resident is a non-delegable duty. NME Properties v. Rudich, 2003 WL 289415 (D.C. Fla., 2003) explains the analysis.

There are several regulations which make this implicit. Under 20 CFR 483.13(c) the facility must not neglect or abuse a resident. The facility has to develop an individualized plan of care per 483.20(k) that states the services to be provided meet the resident’s needs, which means that the care plan, under the scenario that you’ve described, would specifically state that the facility will rely upon “supplemental one on one private duty nursing to be provided by the resident.” That would be pretty wild and your best dream as plaintiff’s counsel, as it would be tantamount to an admission against interest that they can’t meet the needs of the resident. Facilities cannot admit or fail to discharge residents whose needs the facility cannot meet per 483.12(a)(2). Use of outside resources to meet the facility’s obligations under 483.25 is covered under 483.75(h)(1) & (2). 483.75(h)(2) states that arrangements by the facility “pertaining to services furnished by outside resource must specify in writing that the facility assumes responsibility for” the services.

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