Posts Tagged ‘Administrative Law Judge’

Discharge From Nursing Home Must Describe Placement Plans

APRIL 18, 2005  VOLUME 12, NUMBER 42

Samuel Paschall apparently posed some risk to himself and to the other residents of The Washington Home in Washington, D.C. From the day of his first admission to the nursing facility he had been closely monitored because he was difficult to handle, and becoming more so as time went on. When he complained of abdominal pain and was admitted to Walter Reed Hospital, the nursing home saw its chance—it issued what it called an “Advance Notice of Discharge” informing Mr. Paschall (and his daughter, who was managing his affairs) that he could not return to The Washington Home.

There were at least two problems with the notice of discharge sent by the Home. First, federal law requires that such notices must usually be given at least thirty days in advance. Second, any discharge notice from a nursing facility must include a description of the location to which the patient will be discharged. The Home’s notice did not meet either of those requirements.

Mr. Paschall’s daughter hired an attorney and challenged the notice with the District of Columbia Department of Health. An Administrative Law Judge heard the case, and agreed that the notice was deficient—although he ruled that the Home could issue a new notice that could comply with the federal and local requirements.

Instead, the Home did what nursing homes around the country too often do—it told Mr. Paschall’s daughter that his bed had been taken by a new patient, and there were no more Medicaid beds available. Mr. Paschall’s attorney returned to the Department of Health and requested an order that he would be entitled to return to the Home as soon as a Medicaid bed opened up. Ruling that Walter Reed Hospital had become the de facto discharge plan for Mr. Paschall, the Administrative Law Judge decided that an order compelling his readmission to the Home could only be issued by the courts. Mr. Paschall was instead released to a nursing home in nearby Maryland.

The District of Columbia Court of Appeals (the District’s highest court) disagreed with the Administrative Law Judge. The appellate court ruled that the Administrative Law Judge could apply the remedy urged by Mr. Paschall, and order his readmission to the Home. Before doing so, however, he would need to schedule a hearing to determine whether Mr. Paschall still wanted to return to the Home, as well as whether he had given up the right to return (as alleged by the Department of Health) by failing to cooperate with efforts to secure him a place. Most importantly, ruled the court, Mr. Paschall would need to establish that his return to the Home could be accomplished without jeopardizing other residents or himself. Paschall v. DC Department of Health, April 7, 2005.

LPNs Awarded Damages In Wrongful Termination Case

APRIL 26, 2004 VOLUME 11, NUMBER 43

When LPNs Diane Owens and Alisa Main were fired from their jobs with Fayetteville Health and Rehabilitation Center in April, 2000, they were sure their dismissals were retribution. Ms. Owens and Ms. Main had each complained to Kristy Unkel, the Director of Nursing, about the care provided by several certified nurse assistants (CNAs) at the facility. Ms. Owens had even lodged a complaint with the Office of Long-Term Care about what she saw as abuse and neglect of Fayetteville patients.

At least six CNAs had signed a letter to the nursing home administrator, in which they insisted that Ms. Owens created a difficult work environment for them. The CNAs also claimed that Ms. Owens and Ms. Main had themselves abused and neglected patients. According to the CNAs’ complaints, Ms. Owens had failed to document one patient’s fall and fractured hip, and Ms. Main missed a patient’s scheduled medication and spoke harshly to another resident.

One problem with the CNAs’ allegations was that work schedules made their version of the facts difficult to believe, since Ms. Owens had not even signed to work on the day of the patient’s fall. The CNA accusing Ms. Main of missing a patient’s medication was not signed in to work on the date of that alleged incident.

Ms. Owens and Ms. Mains sued Fayetteville and Ms. Unkel, the Director of Nursing. They alleged that they were discharged in retaliation for their complaints, and that their reputations were injured by the false allegations on which the firings were based.

After four days of testimony an Arkansas jury found in favor of Ms. Main and Ms. Owens. The jury awarded damages totaling $332,740 to the two LPNs. The Arkansas Supreme Court upheld the award.

Fayetteville had argued that it had a duty to report allegations of elder abuse, and that it could not be sued for incidents related to its reports against Ms. Owens and Ms. Main. The problem with that theory, ruled the state’s high court, was that the jury had found that Fayetteville did not act in good faith when it filed reports.

The facility also argued that Ms. Owens and Ms. Main were “at-will” employees, and could be fired for any reason or no reason at all. The high court pointed out that public policy considerations require protection for individuals who report abuse or neglect of vulnerable seniors, and employers may not retaliate against employees for such reports. The jury found that the firings were retaliatory and the high court agreed. Northport Health Services v. Owens, April 8, 2004.

As it turns out, Fayetteville’s problems with claims of inadequate care have continued since the firing of Ms. Owens and Ms. Main. In November of 2000–less than a year after Ms. Owens and Ms. Main were discharged–Fayetteville fell so far below the level of care required by the Medicare program that civil penalties were imposed and the facility was denied payment for new Medicare admissions for a two-month period.

Fayetteville’s problems included failing to notify two residents’ physicians about emergency medical conditions, and failure to protect one resident from the possibility of inappropriate administration of medication by a visiting family member. The ruling of the Administrative Law Judge in Medicare’s action against Fayetteville is available online at http://www.hhs.gov/dab/decisions/CR1050.htm. More recent information (still not encouraging as of the most recent survey date) is synopsized on the MemberOfTheFamily.Net website, which includes state-by-state and facility-by-facility information on nursing home survey results.

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