Medicare and Medicaid Regulations Assist in Preventing Nursing Home Abuse and Neglect

DSCF1803.jpgNursing homes often rely on participation in Medicare and Medicaid. Without the assistance of these programs, fewer patients would be able to afford a stay in these facilities, and more of them would go out of business. Participation in Medicare and Medicaid, however, is contingent upon compliance with regulations and standards of care enforced by the federal government. As a case decided by the Fourth Circuit Court of Appeals several years ago shows, these regulations can help prevent abuse and neglect in nursing homes, or provide victims with evidence if abuse or neglect does occur.

A North Carolina nursing home appealed several monetary fines imposed by the Centers for Medicare and Medicaid Services (CMS), arguing in part that the evidence did not support CMS’s findings. Universal Healthcare v. U.S. Dept. of Health & Human Services, No. 09-1093, slip op. (4th Cir., Jan. 29, 2010). CMS imposed fines against the nursing home on two occasions, in November and December 2005, for violations relating to patient care. The Fourth Circuit Court of Appeals affirmed the lower courts’ rulings.

The first set of fines involved a patient identified by the court as G.J., who was to receive a dose of a pain medication, Cafergot, every morning. The CMS investigators found that the duty nurse was unable to give G.J. that medication one morning, because the on-site pharmacy had run out. Instead, they substituted the pain medication Darvocet. The pharmacy did not obtain a new supply of Cafergot until later in the day. CMS found the facility in violation of two regulations: failing to provide adequate pharmaceutical services, 42 C.F.R. § 483.60(a); and failing to provide a “quality of care” matching a patient’s comprehensive assessment, 42 C.F.R. § 483.25.

The fine resulted primarily from the failure to place a rush order for more Cafergot, although the court noted that the nursing home was at fault for running out of the medication. The facility claimed that Darvocet is an acceptable substitute, that the nurse consulted with a physician before making the substitution, and that the nursing home acted with “sufficient alacrity.” The administrative law judge (ALJ) rejected the facility’s factual claims as implausible, and also rejected the claim that the two medications are interchangeable.

The second violation involved a patient identified as A.W. The patient reportedly awoke “agitated and disoriented,” and was administered Valium. Nursing staff later observed him to be sleeping. At 8:45 p.m., however, he was found non-responsive. He was pronounced dead at the hospital several hours later. CMS concluded that three violations occurred: failing to notify the resident’s physician or legal representative of a “significant change” in the resident’s condition, 42 C.F.R. § 483.10(b)(11)(B); lack of “written policies and procedures” to prevent abuse and neglect, 42 C.F.R. § 483.13(c); and an additional violation of the “quality of care” regulation.

The nursing home claimed that, since the staff checked in on A.W. throughout the day, the neglect finding was unwarranted. CMS concluded, and the Fourth Circuit agreed, that the initial change in his condition required more intensive monitoring, and that by the time A.W. was found unresponsive, the nursing home had already violated several regulations.

The personal injury lawyers at Lebowitz & Mzhen are skilled at pursuing justice for people in Maryland who have been injured due to abuse or neglect at a nursing home or other long term care facility. Contact us today online or at (800) 654-1949 for a free and confidential consultation.

More Blog Posts:

$91.5M Nursing Home Neglect Verdict Awarded to Family of Woman for Her Wrongful Death, Maryland Accident Law Blog, August 9, 2011
Staff Was Inattentive on The Night of Patient Murder at Jessup Psychiatric Hospital, Says Maryland Health Investigators, Maryland Accident Law Blog, February 22, 2011
Baltimore County Wrongful Death Lawsuit Accuses Westminster Assisted Living Facility of Maryland Nursing Home Neglect, Maryland Accident Law Blog, April 28, 2010
Photo credit: Koushik from morguefile.com.

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