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Overburdened Staff Should Not Be Blamed for Nursing Home Fraud

Most of the fraud cases we see involve elderly patients who are receiving inadequate care in nursing homes because the facility managers not only understaff but also put pressure on staff to report “adequate” care no matter what kind of care was given. Errors come about because these workers are under extreme pressure—not only from nursing home management but from day-to-day responsibilities. It’s a hard job caring for the elderly.

A nursing home gets paid by the type and quantity of care given. It tells the Government the number in its patient population and what the needs are for those patients. It then gets compensated by the Government for providing adequate care. A fraud problem arises when a nursing home bills for care it didn’t provide, and then gets paid.

CNAs are most often the front line workers although sometimes there are also LPNS and RNs on staff. Oftentimes one CNA is assigned to care for 10, 15, or even 20 elderly patients. When you see what a CNA has to do for just one person it becomes an outrageous situation with the number of patients assigned.

One of the most laborious things a CNA must do is turn and reposition patients or “residents” as they are often called in nursing homes. Many of our cases at Stark & Stark involve pressure ulceration injuries caused when a person is left in one position so long that their skin deteriorates. When this happens, the patient develops a sore–also known as a bedsore—which can lead to greater complications including bone and joint infections, sepsis, or even cancer. To prevent this, a CNA must turn the patient every two hours. The patient and the family are depending on this care to protect the patient’s health. Imagine a CNA performing these tasks for just one person who weighs 200 pounds:

  • Help out of bed

  • Help to shower or bathe

  • Help get to and from the bathroom (multiple times)

  • Perform basic hygiene tasks

  • Adjust medical equipment

  • Take vital signs

  • Perform basic exercises

  • Take to social events

  • Take to therapy

  • Feed (multiple times)

  • Answer convenience calls

  • Turn every two hours

Now multiply that by 10 or 20 patients. Depending on the condition of the patients and the number assigned, it’s easy to see a gap between “adequate” care levels and the amount of time available in a shift. And that’s why we sometimes see nursing home staff falsifying records.

The pressure to do this comes down from above because the nursing home has a goal to make as much money as it can. It has to show the Government it is providing adequate care and needs to be reimbursed for it. The nursing home will pressure staff to record activities of daily living that weren’t actually performed. And how could they be performed when one CNA has 10 or 20 patients? Faced with the pressure to report adequate care and an inability to complete the work, staff will sometimes report that it provided more care than was possible. When a record is falsified on a report to the federal government, the facility is saying, “We have performed this service for this patient under Medicare or Medicaid, therefore compensate us.”

This gets even worse when the facility starts reporting high level care hours—like physical and occupational therapies. We see cases where, for example, there is a 92 year old woman suffering from dementia and the medical record shows the nursing home billed for physical therapy, occupational therapy, and speech therapy the day before the woman died. It’s not the kind of care you would expect, nor does it seem reasonable given such a patient’s medical state. It’s important to note that the fault should not be on the nursing aides. In New Jersey people receive training to become a Certified Nursing Assistant (CNA). Once certified they have an idea of what they are supposed to do to care for patients. Then they get to these nursing homes and are asked to do things that just can’t be done—not necessarily because of the skill set, but because there isn’t enough staff for the number of patients on the roster.

When we take on these cases and start interviewing, we find the CNAs really want to do a good job—and they really want to reach out and tell someone what’s really happening. They want to call some agency or some authority to say, “Look, this is what’s happening in this nursing home—I want to do my job, but I can’t.” What you as a CNA need to know today is that you should tell someone. You should contact someone to help. There are options and a law called the False Claims Act (FCA), which provides an outlet for complaints and some protection to the CNA or other staff member who acts as a whistleblower. For more information on that, see our post on How Nursing Home Staff Can Help Prevent Medicare Fraud.

Before you go down that road, it is a good idea to consult an experienced attorney to find out your options and rights related to nursing home whistleblower standards.

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COPYRIGHT © 2021, STARK & STARKNational Law Review, Volume VI, Number 134
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The Stark & Stark nursing home negligence attorneys will fight to recover all the benefits you deserve. As a result of our experience in representing clients in nursing home negligence matters and through careful assessment and preparation, our nursing home negligence lawyers help victims and their families obtain cash settlements for injury, medical expenses, and pain and suffering. Sometimes these positive outcomes are achieved only by going to trial. However, in many cases our lawyers are able to obtain favorable settlements outside of the courtroom, making the experience less...

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