This is the Nursing Home Abuse Podcast. This show examines the latest legal topics and news facing families whose loved ones have been injured in a nursing home. It is hosted by lawyers Rob Schenk and Will Smith of Schenk Smith LLC, a personal injury law firm based in Atlanta, Georgia. Welcome to the show.
Schenk: Hello and thanks for joining us at the Nursing Home Abuse Podcast. My name is Rob Schenk.
Smith: And I’m Will Smith.
Schenk: And we are trial lawyers and we practice in the area of nursing home abuse and nursing home neglect in the state of Georgia. We are coming to you from our offices in Atlanta, Georgia, more specifically in our library affectionately called “The Dungeon.” And it certainly smells like a dungeon today. I don’t know what’s going on. It’s a little musty back here with all the books.
But anyways, again, I normally skip the pleasantries between myself and my co-host Will, so I will do that again. I will just tell you that he is doing better than fine but less than great, so somewhere in there is how Will is doing today mood-wise. So with that, we will move into the actual content of today’s episode. We’re happy to be here with you. We’ll be talking about all kinds of stuff. What have we got first on the agenda, Will?
Smith: We’re going to talk about the state and federal government versus the nursing home. In the last podcast, if you watched it, you’ll notice that we talked about risk assessments and we talked about something called the MDS. And the MDS is the long-term care minimum data set. It’s a standardized primary screening and assessment tool of health status that forms the foundation of the core, comprehensive assessment for all residents in a Medicare and/or Medicaid certified long-term care facility.
So what it ends up doing is it tells Medicare or Medicaid this is how much we’re going to bill you because of the assessment of this resident. So for example, you can think about if you’ve got a resident who’d probably be okay in an assisted living facility, they’re probably not going to bill Medicare or Medicaid as much for them as they would for somebody who is on a G-tube, completely non-ambulatory, has diabetes and a host of other comorbidities and problems.
So why am I bringing this up right now? Well the reason I’m bringing it up right now is because a lot of times, and this happens way more often than it should in the billions and billions of dollars a year, what will happen is long-term care facilities and hospitals will fib on their assessments, lie to the federal government, to CMS, in order to receive billing that they don’t really need.
A lot of times what this will end up being is you’ll find somebody that is getting physical therapy while they’re asleep. But what this is it’s something called the False Claim Act, the Whistleblower Act or the fancier term – qui tam.
Schenk: Which is Latin for defrauding the American government.
Smith: Well it’s Latin for “he who sues in the matter for the king as well as for himself.” So it goes back to 300 years, 400 years, actually 500 years to English law that would allow certain individuals to bring suits against merchants on behalf of the king. And they would take a certain percentage out of any suit that was successful.
So any suit that was successful now, we have what’s called the False Claim Act, which started in the Civil War – it’s also called Lincoln’s Law. And the reason why they call it Lincoln’s Law is because he was President at the time, but during the American Civil War, there was a lot of fraud on both sides in the Union and the Confederacy, and a lot of contractors would sell the Union Army decrepit horses, mules in ill health, faulty rifles and ammunition, bad rations and provisions among other things, and so Congress passed the False Claims Act in 1863.
Basically what it does is if somebody discovers that the government is being defrauded, then they can inform the government and basically become a whistleblower or a snitch. And because they’re telling on these individuals, because they discovered this, they can get a certain percentage of anything that is recovered. This happens a lot in long-term care facilities.
There’s also a corresponding state False Claims Act in Georgia that was enacted in 2012. It’s called the Georgia Taxpayer Protection False Claims Act, which allows whistleblowers to file qui tam lawsuits if they know of violations of the state law and they’ve got written approval of the attorney general.
So just to let you know, last year alone, there was about 2-2.5 billion recovered under the False Claims, and it’s significant because you have to keep track of what the nursing home is billing Medicare and Medicaid for. And this is why – not to get on another subject, but briefly – you need to have the ability to whatever documents you’ve got to sign to be able to see your loved ones’ medical billings and medical records, keep track of that. If your mother is completely non-ambulatory and she’s not with it and she’s not getting any physical therapy at all, then there’s no reason that nursing home needs to be billing Medicaid or Medicare for physical therapy sessions.
It doesn’t just hurt the taxpayer. It’s also money that you could potentially owe the federal government if you’re ever in charge of your loved one’s estate, because there is the Medicare and Medicaid Recovery Act that allows them to go after assets of the nursing home resident – not to get off on another subject. But that’s why it’s important for you to keep track of it.
Schenk: And there is incentive to bring a claim under the False Claims Act, the qui tam lawsuit. And that is because as an actor on behalf of the government, that you’re suing someone in order to recover for the government, you’re entitled, if you’re successful, you’re entitled to a percentage of the recovery. And generally in a False Claims Act, the recovery is between 15 to 25 percent.
Smith: And you have to think about how much these False Claims Acts end up being, the damages portion. Just in 2016, we had two major qui tam actions against long-term care facilities, one which was against Kindred Healthcare. And this was for what I was talking about earlier – a therapy scam case where they were billing for therapy that was never received. They ended up paying the government $125 million.
In another one, Life Care Centers of America, which is one of the largest long-term care providers out there, they billed Medicare and Tri-Care for unnecessary medical services and they ended up paying 145 million.
And it just goes right back to what I said time and time again, that pigs get fed, hogs get slaughtered. These people are hogs. Time and time again, we see examples of them just being way too greedy and that’s the whole purpose of qui tam. That’s the whole purpose of the False Claims Act. That’s the whole purpose of bringing these whistleblower actions.
So what does that mean for you as a nursing home resident or the loved one of a nursing home resident? Well not that much. It’s something interesting to note and it’s certainly something to be aware of. Be aware of the fact that there are nursing homes out there who will tell Medicare or Medicaid that your mother needs X, Y, Z when in fact she only needs X, and that they’re probably billing the government on her behalf for services that she’s not getting.
Schenk: And keep in mind, that’s not for the benefit of your loved one. That’s for the benefit of your company that’s doing the excessive billing, so it’s not like they are good naturedly overcharging to get money from the government in order to provide more CNAs or better services to your loved ones. This is generally done under, again, a corporate greed mentality, the “pigs get fat, hogs get slaughtered” standpoint.
So make no mistake about it. If you discover that this is happening upon reviewing your loved one’s medical billing and you see things that are awry, then it would behoove you to talk to somebody about making a false claim, because if a facility is willing to do this, then they are certainly likely to neglect or even abuse if not your loved one then another resident in that facility.
Smith: And speaking of abuse, there is another area that the government is reaching out to and it directly involves Georgia, and it has to do with a new task force formed by the Department of Justice. This is from a Law360 article back in April this year. In March this year, the US Department of Justice announced that healthcare providers who serve the elderly in the following 10 states – out of 50, 10 of these states will have task forces looking over their shoulder. Among those states, and those states are California, Tennessee, Pennsylvania, Ohio, Maryland, Iowa, Kentucky, Kansas, Washington and, of course, Georgia.
It’s known as the Elder Justice Task Force and they combine the resources of federal, state – so Georgia state, like the GBI – and local prosecutors, which include the district attorney’s office, law enforcement agencies that provide services to the elderly with an eye towards coordinating, enhancing efforts to pursue nursing homes that provide grossly substandard care to the residents.
The DOJ said the task force reflects the Department’s larger strategy and commitment to protecting our nation’s seniors. It’s comprised of representatives from the US Attorneys Office – the US Attorneys Office is the federal version of the district attorney’s office – state Medicaid fraud control units, state and local prosecutor’s offices and the US Department of Health and Human Services and the State Adult Protective Services, ombudsman programs and law enforcement.
Schenk: It says that basically the government wants to prevent fraud in the first place rather than “just pay and chase those who submit fraudulent claims.” These are affirmative efforts to find and root out the bad seeds.
Smith: Yeah, and this is really significant. According to the Georgia Department of Human Services, Georgia is the 11th fastest growing 60-and-over population and the 10th fastest growing 85-and-older population in the United States. So out of all 50 states, we’re in the top 10 of booming elderly population. And with 159 counties and 300-something nursing homes, we’re certainly ripe for a lot of fraud, waste and abuse in this industry, and that’s the reason they’re focusing on 10 states, one of which is specifically here in Georgia.
So what do you do if you suspect that your nursing home is involved in this? Well number one, you can always call the Department of Community Health. Register a complaint with the Department of Community Health. You can contact – if it’s something that you think is more sinister and more criminal in nature, you can always contact your local district attorney’s office, or you can look up the number to the United States Attorney’s Office and give them a call. There’s going to be a specific elder fraud and abuse unit here in the northern district of Georgia, but in all honesty, I think it’s probably easiest if you just immediately contact the Department of Community Health for the state of Georgia. If they find something there, they’re likely to report it up the chain of command for you. And of course, if you’ve ever watched any of our informative videos, you know that there are a host of numbers that you can call…
Schenk: In the state of Georgia.
Smith: …In the state of Georgia to report elder abuse if you suspect somebody of it. And the easiest number is the Department of Community Health. It’s 1-866-55-AGING.
So having talked about the Whistleblower Act and nursing homes trying to defraud the government, one of the ways that they often do this – and I’m segwaying now to our next topic – one of the ways that they often do this is by claiming that an individual needs more assistance than necessary. And when they have individuals that need a lot of assistance, they have to spend money on equipment, and that is one way they can defraud CMS is by claiming that they need to spend more money on equipment when they actually don’t do it.
But speaking of that equipment, it is very vital and necessary, and the main equipment that I’m talking about are the lift machines. When I first started as a CNA in 2000, 16 years ago, I didn’t really see a lot of the lifts in the very beginning.
The CDC says that I want to say about 90 percent of those in the nursing industry, and I’m talking about nurses and below, so nurses and CNAs, not doctors, just nurses and CNAs, 90 percent of them are female. And I worked with probably 99 percent staff of female workers. I mean the vast majority of the time when I was a CNA, I was the only man around.
And I was much younger back then, had just gotten out of the Marine Corps, I was in very good shape, very strong, and so you can imagine that I was used to the point of exhaustion to lift up these heavy residents, because it’s difficult to lift up a 200-pound resident that is neither giving you assistance…that is either not giving you assistance or they’re fighting against you. The injuries alone suffered by individuals in the nursing home industry are just phenomenal, the workplace injuries that we would experience. It is truly backbreaking work.
So in the beginning, I had to lift the patients up myself or I had to assist the other CNAs, or we would use what we called a gate belt, which is typically used to assist the person in walking. Sometimes we would have to use them to assist us to stand the person up.
But there are two types of machines that they use more and more these days to the point where I think when I last worked in a home somewhere, they’d gotten to the point where you exclusively, if you had to lift a resident, you used a lift. You did not do it yourself. And that’s good.
There’s a lot of benefit to using the lifts. The benefits to the residents, according to the CDC – improved quality of care, safety, comfort and a reduced risk of falls, being dropped, dislocated shoulders, and a reduced amount of skin tears and bruises, because you’ve got to think about it. The human body is limited in what it can do, and I don’t care how strong you are, how young you are, you’re lifting up an individual and at any given moment, your back could go out. You never know. And then you’re going to end up dropping that individual.
So we use two types nowadays of lifts. One is called a Hoyer lift. It is the standard lift in long-term care facilities, and it’s a machine that is basically, it consists of the machine and the arm, which does the lifting, and the resident sits in a sling. And the sling is put underneath them. They’re rolled to one side, it’s put underneath them, they’re rolled over to the other side, you pull it through on the back and that way it’s behind them, it goes in between their legs, around their shoulders and the machine then picks them up and it moves them over to where their chair is and you can tilt it and then you can set them down in the chair – easy peasy.
Schenk: Here’s something that I didn’t know about the Hoyer lift but found out doing research for this podcast is that the Hoyer lift was invented by Ted Hoyer, who himself was a quadriplegic. It says in the information online here that Ted Hoyer, an innovative quadriplegic, invented the first power lift over 55 years ago. Frustrated by his lack of independence and mobility, Ted was inspired to draft plans for an invention to remedy the situation. And with the help from his cousin, Victor Hilderman, they developed the first powered patient lift.
Smith: That’s interesting. And the Hoyer lift has saved… A lot of CNAs don’t like to use it because in their mind, it takes up time, but it makes things so much easier. It makes life easier. You’re far less likely to drop the resident. I mean there have been reports of Hoyer lifts malfunctioning, but you know, they’re far less likely to do than the human body.
And then of course there’s the sit-to-stand lift, which is basically it does half of the work for the resident. Imagine they’re sitting in a chair and they need to stand up, a sling would go around them. They would hold onto the lift, they would hold onto the arms of the lift and the lift slowly comes up while their feet are on the ground to help them stand.
In your mind, if you’re picturing a 90-pound woman needing to use this machine, then you’re just picturing the wrong resident. A lot of nursing home residents are very large. Some of them can weigh 230, 250 to 300 pounds. And when you’ve got 90 percent staff that are women that have trouble lifting these really heavy residents…
Schenk: And even men – we’re not talking about a 250-pound weight like in Crossfit. We’re talking about a 250-pound human person who has appendages that sometimes don’t want to be lifted. The weight gets shifted in strange ways, so yeah, it gets difficult no matter female, male, strong, not strong, out of the Marines, not out of the Marines.
Smith: Yeah, and it’s difficult. It’s difficult. It also reduces the workplace injuries, which workplace injuries can lead to understaffing. So the Hoyer lift and the sit-to-stand lifts are invaluable. They’re good to keep staffing levels up. They’re good to protect residents and they also protect the staff as well. So they’re good.
Schenk: Go into, if you don’t mind, what it means to have a resident needing total assist, partial assist, what that means in terms of the number of staff required to help and what methods that you would need if you do not have a lift, so for example a board, a wedge.
Smith: Yeah, so what the board is – the board’s going to be used on somebody who’s a partial assist. Like for example, my mother is a paraplegic, but she gets herself in and out of bed. She’s the type of person who would use a board. It’s simply something – it’s a board that’s slanted at both ends so the individual can put it, wedge it underneath their thighs, their legs and their buttocks and put it on the bed. And then they use it to slide themselves over onto the bed. They’re either partial assist, and in my mother’s case, she can do it by herself.
Then for somebody like for a partial assist for a shower, you may wheel them into the shower room and get everything ready for them, but they sit in a shower chair and they shower themselves, and when they’re done, you bring the towel over and maybe help dry them and their back and their bottom, places where they can’t reach.
Somebody who’s a total assist is somebody who basically is in the same way that a newborn baby is a total assist. They can’t do anything. So you’re going to have to completely lift them out of the bed and put them… For example, if we’re taking them to the showers, you’re going to have to completely lift them out of the bed with either a multi-person assist or a Hoyer lift and put them in a shower chair, take them down to the shower room. You have to wash them and then you have to dry them. You have to take them back to the bed, use the lift again to put them back in the bed and then put their…either they’ve got their clothes on at that point, which hopefully they do, or they have a gown on, so you have to dress them. You have to do everything for them.
So you can imagine that if you’ve got an individual that’s severely contracted, meaning that their legs are contracted, their hands are contracted, it’s difficult to move their body around and they’re morbidly obese, it’s going to require at least two CNAs to assist. I mean one CNA might be able to do a lot of this, but they’re going to have some assistance, and it’s probably going to take them the better part of 30 to 40 minutes to perform this entire action of giving this person a shower. And while they’re doing that, they’re not taking care of anybody else.
So lifts, at the very least, reduce understaffing by reducing injury, which is important when you consider that one CNA may be for the better part of an hour engaging somebody who is a total assist.
But what that also does, just referencing earlier in the podcast, that is on the minimum data set of what type of assistance this person needs, so they’re going to get more money from Medicare and Medicaid because of that.
Schenk: And in terms of assistance, this podcast generally requires two lawyers in order to complete, and we have in fact come to the completion of this particular episode of the Nursing Home Abuse Podcast.
Again, if you’ve enjoyed this podcast, if you’re new to it, please know that you can download the audio of the podcast on Stitcher or iTunes, or you can watch this podcast on our website, which is NursingHomeAbusePodcast.com, or on our YouTube channel. And every Monday, you will get new episodes of the Nursing Home Abuse Podcast. If you subscribe on iTunes or Stitcher, you get those things delivered right to your mobile device and you can listen at your leisure. Otherwise, you can watch at anytime online and we enjoy you and we’re glad you have tuned in and we will see you next time.
Smith: See you next time.
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