ANDREW CUOMO ATTORNEY GENERAL STATE OF NEW YORK MEDICAID FRAUD CONTROL UNIT 144 Exchange Blvd. Suite 600 Rochester, New York 14614 (585) 262-2860
Patient Abuse in Nursing Homes Financial Abuse of Guardianship Financial Abuse of POA All within the scope of a person who has responsibility for an individual Criminal Investigations
Weddings STEIN COMMISSION Boats Race Horses Vacation Homes
MEDICAID FRAUD CONTROL UNIT CREATED IN 1975 AS A RESULT OF ABUSES IN THE NURSING HOME INDUSTRY. IN 1977 BECAME MODEL FOR FEDERAL LEGISLATION CREATING THE STATE MFCUs.TEAM CONCEPT FOR FIGHTING FRAUD: ATTORNEYS AUDITORS INVESTIGATORS SEPARATE AND DISTINCT FROM STATE MEDICAID AGENCY ATTORNEY GENERAL'S OFFICE ‑ CRIMINAL DIVISION
MFCU REGIONAL OFFICES ALBANY BUFFALO HAUPPAUGE NEW YORK CITY PEARL RIVER ROCHESTER SPECIAL PROJECTS SYRACUSE
MFCU JURISDICTION STATEWIDE PROGRAM TO INVESTIGATE AND PROSECUTE VIOLATIONS OF STATE LAW INVOLVING: PROVIDER FRAUD FRAUD IN THE ADMINISTRATION OF THE PROGRAM PATIENT ABUSE, NEGLECT AND MISAPPROPRATION OF FUNDS THE OPERATION, MANAGEMENT AND FUNDING OF HOSPITALS, NURSING HOMES, CLINICS AND ADULT CARE FACILITIES
PA Complainants NYS Department of Health Family members Nursing home staff Anonymous complaints Self-generated
The Department of Health’s patient abuse hotline number is (888) 201-4563.
Referrals Received 2003145 2004129 2005108 2006 98 2007 64 Opened 200311 200417 200511 2006 6 2007 4
In accordance with the Public Health Law[§2803-d(1)], the following persons are required to report instances of suspected physical abuse, neglect and/or mistreatment to the Department of Health: Any operator or employee of such facility Any person who, or employee of any corporation, partnership, organization or other entity which, is under contract to provide patient care services in such facility, and any nursing home administrator, physician, medical examiner, coroner, physician’s associate, specialist’s assistant, osteopath, chiropractor, physical therapist, occupational therapist, registered professional nurse, licensed practical nurse, dentist, podiatrist, optometrist, pharmacist, psychologist, certified social worker, speech pathologist and audiologist.”
The Public Health Law provides that every patient “shall have the right to receive adequate and appropriate medical care” [Public Health Law §2803-c (3)(e)] and “be free from mental and physical abuse and from physical and chemical restraints…” [Public Health Law §2803-c(3)(h)]
In addition, it is a violation of both the Penal Law of the State of New York, and the Public Health Law of the State of New York to physically abuse, neglect or mistreat a patient in a residential care facility or to fail to report such an act.
The term abuse shall mean inappropriate physical contact with a patient or resident of a residential health care facility, while such patient or resident is under the supervision of the facility, which harms or is likely to harm the patient or resident. Inappropriate physical contact includes, but is not limited to, striking, pinching, kicking, shoving, bumping and sexual molestation. [10 NYCRR 81.1(a)]
The term neglect shall mean failure to provide timely, consistent, safe, adequate and appropriate services, treatment, and/or care to a patient or resident of a residential health care facility while such patient or resident is under the supervision of the facility, including but not limited to: nutrition, medication, therapies, sanitary clothing and surroundings, and activities of daily living. [10 NYCRR 81.1(c)]
The term mistreatment shall mean inappropriate use of medications, inappropriate isolation or inappropriate use of physical or chemical restraints on or of a patient or resident of a residential health care facility, while such patient or resident is under the supervision of the facility. [10 NYCRR 81.1(b)]
Public Health Law §2803-d (7) states: In addition to any other penalties prescribed by law, any person who commits an act of physical abuse, neglect or mistreatment, or who fails to report such an act as provided in this section, shall be deemed to have violated this section and shall be liable for a penalty pursuant to section twelve of this chapter…
Public Health Law § 12-b (2) provides that any person who willfully violates any provisions of the Health Law, or any regulation promulgated thereunder, commits a crime and may be punished by a term of imprisonment not exceeding one (1) year, or by a fine not exceeding two thousand dollars ($2,000.00) or both.
Penal Law Rape Sexual Abuse Grand Larceny Criminal Possession Endangering the welfare incompetent or physically disable Endangering the welfare vulnerable elderly person Falsifying Business Records Offering a False Instrument
Penal Law, §260.25 states that: A person is guilty of endangering the welfare of an incompetent or physically disabled person when he knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a person who is unable to care for himself or herself because of physical disability, mental disease or defect. Endangering is a class “A” misdemeanor punishable by up to one year in jail
In November 1998, “Kathy’s Law,” a bill designed to further protect nursing home residents and home health care patients from abuse went into effect.
The law provides that a “caregiver” who intentionally or recklessly causes “physical injury” to a “vulnerable elderly person,” or who subjects such a person to sexual contact without the latter’s consent, is guilty of Endangering the Welfare of a Vulnerable Elderly Person in the Second Degree. Endangering the Welfare of a Vulnerable Elderly Person in the Second Degree is a class “E” felony, punishable by up to four years of imprisonment in a New York State Correctional facility. (Penal Law §260.32)
If such a victim suffers a serious physical injury, the level of crime is elevated to Endangering the Welfare of a Vulnerable Elderly Person in the First Degree, a class “D” felony, punishable by up to seven years imprisonment. (Penal Law §260.34)
Investigation Referral from NYSDOH Shanika Moore, HHA Benjamin Rini During routine care Rini suffered three broken ribs, a punctured lung and a broken pelvis Moore arrested, convicted, 6 months in jail
Convictions Michael Brasley, CNA, guilty plea Transfer-2 person mechanical lift, conducted transfer by himself Injury: fractured left hip 12b(2) Willful Violation of Health Laws
Convictions Christine Dabrowski, RN, guilty plea Discontinued treatments w/o physicians orders, different enema, initialed MARS and TARS w/o providing services Willful Violation of Health Laws Falsifying Business Records
Maryann Saxe, LPN – stole Fenytal patches from an 87 year-old hospice patient Heather Moore, RN – charted phony blood glucose readings Jackie Dennis, LPN – failed to irrigate & change dressing on decubitus ulcer Julie Wannamaker, LPN- failed to dispense meds & falsified records Pearl Banks, LPN – failed to provide morphine to hospice patient & falsified records Convictions
Convictions 2004 Michael Edwards, LPN, jury guilty verdict Sexual contact with a comatose nursing home resident for the purpose of sexually gratifying sexual desire of either party, when the person is incapable of consent by reason of being physically helpless Sexual Abuse 1 st, Willful Violation of HL
2005 Debra Wilson, CNA jury guilty verdict 2 person transfer, alone Skin tear- wrapped with towel left w/o reporting/documenting Endangering Welfare Incompetent Person Willful Violation of HL Convictions
Brandie Perry, CNA guilty plea Kneed resident in testicles, fist punched in face and head Willful Violation of HL Convictions
Tashiany Martin, LPN, guilty plea Worked at nursing home for 10 months after stealing identity of another nurse Unauthorized practice of a Profession, Identity Theft, Grand Larceny Convictions
Old Habits Die Hard Jack GoodBody, Physical Therapist Terence Cardinal HCC Eastchester HCC, Split Rock Multi-Care Center Long Beach Nursing Home
SMILE - YOU’RE ON CANDID CAMERA THE AG MAY BE WATCHING
ABUSING OR NEGLECTING A NURSING HOME PATIENT IN NEW YORK CAN GET YOU SOME FACE TIME ON THE LOCAL NEWS
CAMERA CASES Jennifer Matthews Northwood NY case
Jennifer Matthews: 14 convictions, civil lawsuit pending Northwood: 5 conviction, jury guilty verdict against corporation Convictions
Sanction and fine by the Department of Health Suspension by the Secretary of Health and Human Services from the Medicare & Medicaid Programs for a minimum of five years Disciplinary action by the Department of Education’s Office of Professional Discipline or the Department of Health’s Office of Professional Medical Discipline
Any licensed person who commits an act of physical abuse, mistreatment or neglect of a person receiving care or services in a residential health care facility, and any licensed person required by this section to report an instance of suspected physical abuse, mistreatment or neglect of a person receiving care of services in a residential health care facility who fails to do so shall be guilty of unprofessional conduct in the practice of his or her profession. [Public Health Law §2803-d (5)]
A nursing home may not employ individuals who have been found guilty in a court of law of abusing, neglecting or mistreating residents or patients or who have a finding entered into the New York State Nurse Aide Registry concerning abuse, neglect or mistreatment of residents or misappropriation of their property. (10 NYCRR §415.4)
Guardianship Is a legal proceeding in the Surrogate’s Court Designates a person to act on the behalf of an individual who is mentally retarded and/or developmentally disabled Unable to manage his/her personal affairs without help Once obtained, lifetime, terminated by Court
Types of Guardianship Guardianship of the Person Guardianship of the Property Standby Guardianship Limited Guardianship
Guardianship of the Property Appointed by Surrogate Court Responsible for the management of all financial resources Expenditures must be approved by Surrogate Court Guardian of Property required to provide a detailed report of all financial transactions to the Surrogate’s Court
Power of Attorney Nondurable POA: for a specific transaction, like closing on the sale of residence, or out of the country. Durable POA: enables agent to act for principal even after the Principal is not mentally competent or physically able to make decisions. Springing POA: effective at a time chosen by the POA, usually the event is illness or disability of the principal.
Legal Powers of POA Buy or sell your real estate Manage your property Conduct your banking transactions Invest, or not invest, your money Make legal claims and conduct litigation Attend to tax and retirement matters Make gifts on your behalf
Power of Attorney Opinions of the Attorney General 1997 Grant of any form of POA from a resident to a nursing home administrator, for the benefit of the nursing home, is inconsistent with the purpose of a POA Matter of Luby 1999 Suffolk County Court Nursing home administrator acceptance of POA to protect interests of the home is inconsistent with the duty of POA
Power of Attorney Matter of Gershenoff 2003 POA for aunt failed to adequately document $163,000 that he withdrew from aunt’s account. No records were kept of this transaction or ongoing accounts of cash expenditures. Court ruled that he had a duty as POA and consequently, liable to his aunt’s estate for the amount unaccounted for. POA ruled invalid.
Attorney General’s Medicaid Fraud Control Unit 144 Exchange Boulevard, Suite 600 Rochester, New York 14614 (585) 262-2860